Hugh Boyle, Plaintiff In Error v. James Zacharie and Samuel Turner

• Decision Date: 01 January 1832
• Parties: HUGH BOYLE, PLAINTIFF IN ERROR v. JAMES W. ZACHARIE AND SAMUEL H. TURNER
• Court: U.S. Supreme Court

31 U.S. 648

6 Pet. 648

8 L.Ed. 532

HUGH BOYLE, PLAINTIFF IN ERROR v. JAMES W. ZACHARIE AND SAMUEL H. TURNER.

January Term, 1832

ERROR to the circuit court of the United States for the district of Maryland.

The facts of this case are stated, in part, in the preceding equity case; and in the opinion of the court, delivered by Mr Justice Story.

The defendants in error, citizens of Louisiana, and merchants of New Orleans, instituted a suit in the circuit court against Hugh Boyle of Baltimore, for the amount which they had been obliged to pay as his securities in an attachment against his property at New Orleans. The action was brought on the 23d December 1819.

Mr Boyle appeared to the suit at May term 1820, and filed a plea of non-assumpsit, and issue was joined: the cause was then continued to November term 1820, and then to May term 1821, when the defendant withdrew his plea, and confessed judgment for the damages in the declaration and costs: these damages to be released upon the payment of three thousand one hundred and thirteen dollars and eighty cents, with interest from 15th November 1819, and seventeen dollars and twenty-five cents costs, 'subject to the legal operation of the defendant's discharge under the insolvent laws of Maryland.' On the 8th October 1822, a scire facias was issued to revive the judgment, and a fiat was entered on the 7th November 1823, and for sixteen dollars and seventy-five cents costs on fiat.

A fieri facias, to lie, was issued to December term 1824, and renewed from time to time until 12th December 1827, when it was taken out of the office and delivered to the marshal; and was by him, on the 31st day of March 1828, levied on the ship called the General Smith, and so by him returned to May term 1828, in these words: 'Levied as per schedule on 31st day of March 1828. Injunction issued on the 8th April 1828.'

On 7th April 1828, the plaintiff in error filed his bill of complaint on the equity side of the circuit court against Zacharie and Turner, to stay proceedings at law upon the judgment; and a writ of injunction was granted by the circuit judge, and issued on the 8th day of the same month.

The bill which had been filed by the plaintiff in error on the equity side of the court having been dismissed, the attorney for the plaintiffs, on the 10th June 1829, gave an order to the clerk to issue a writ of venditioni exponas, which was issued on the 29th August 1829, and delivered to the marshal, who made a return thereof to the December term 1829, that he had received the amount of the execution from the defendant, and had it ready to bring into court.

The defendant at the same term made a motion to quash the writ of venditioni exponas, and filed the following reasons in support of his motion.

1. That the judge who granted the said writ of injunction required the defendant, Hugh Boyle, to execute an injunction bond or obligation, before the said writ was issued. The bond was in the common form.

2. And also the one hundredth rule of the court, adopted, with others, by the circuit court of the United States for the fourth circuit, in and for the district of Maryland; passed and adopted by the court, as the rules for the orderly conducting of business in the court in cases at common law, and to regulate the practice in the court; at November term 1802.

One Hundredth Rule. 'Writs of capias ad satisfaciendum, fieri facias (or attachment by way of execution), as authorized by the act of assembly of this state, may issue at the option of the party in whose favour any judgment shall be rendered for the recovery of any debt or damages; but only one execution shall be served returnable to the same court, unless sufficient money shall not be levied to satisfy the judgment, in which case the capias ad satisfaciendum may be afterwards served for the residue, which shall be indorsed thereon, and the costs of the writ not served shall be paid by the party issuing it.'

And also the act of the general assembly of Maryland, passed at November session 1799, chapter 79, entitled 'an act to prevent unnecessary delay and expense, and for the further advancement of justice in the court of chancery;' and also the act of the general assembly of Maryland, entitled 'an act for the ease of the inhabitants in examining evidences relating to the bounds of lands, and in the manner of obtaining injunctions,' passed at October session 1723, chapter 8.

And also appealed to the knowledge of the court, that according to the uniform and immemorial practice in the state of Maryland, with regard to the state courts, whenever a writ of fieri facias had been levied, and the proceedings were stayed by injunction before the day of sale, the officer who had levied the writ of fieri facias delivered up the property seized by him, to the defendant at law, upon the service upon the said officer of notice of the writ of injunction.

The court overruled the motion, and ordered and directed the marshal to bring into court the money mentioned in his return, and the cause was removed to this court by writ of error.

The case was argued by Mr Wirt, for the plaintiff in error; and by Mr Scott, for the defendants.

Mr Wirt contended: 1. That there was error in not quashing the writ of venditioni exponas; because the equity cause, lately depending in the same court, between the same parties, on account of the same cause of action, having been set down for a final hearing, and a final decree having been passed dissolving the injunction issued in said equity cause, and that decree being appealed from, and an appeal bond having been filed and approved by the court, and the proceedings transmitted to the appellate court where they are still pending; the execution of the judgment enjoined against, should have been stayed by the appeal until affirmance of the decree.

2. That the property seized under the writ of fieri facias should have been delivered up by the marshal to the defendant at law (plaintiff in error), on service of the writ of injunction, according to the law and practice of the courts of the state of Maryland, and is to be considered as having been so delivered up; and therefore a writ of venditioni exponas could not properly issue, even if other process might.

3. That whether the law and practice of the courts of Maryland justified the marshal in the delivery up of the property taken in execution, or not, a writ of venditioni exponas was not the proper process which ought to have issued.

4. That if such a writ was the proper process, it was fatally defective in form, as well as in substance, and ought therefore to have been quashed.

5. That on the return of the marshal made to the venditioni exponas, the court below erred in requiring the money to be brought into court.

Mr Wirt contended that the appeal in the equity case was a supercedeas in this case; and the venditioni was therefore improperly issued.

Originally, all cases were brought up to this court by writ of error, which was always a supercedeas if prosecuted in time. This practice was changed by the act of congress of 1803; and now the appeal operates precisely as did a writ of error; and the taking out the execution was irregular. Cited, 2 Wheat. 132; Coxe's Dig. 50, 51. As to the practice in the state of Maryland, cited 6 Har. and John. 332.

After the cause is in this court, it ought to have the power to see that no further proceedings be had in the court below.

In all cases of proceedings in rem, and bond and security given, the bond is a substitute for the res ipsae; which is thereupon restored to the party. Act of Maryland, 1723, ch. 28; act 1799, ch. 79. It is admitted that these laws have no force in the courts of the United States, but under the power of the court to adopt the state practice. As to adopting the state practice, cited 10 Wheat. 51; 10 Wheat. 1. As to the right of the party to take out a writ of error in such a case, cited 7 Cranch, 278.

The motion to grant the venditioni is a substitute for the writ of audita querela. This is now obsolete; and relief is granted on motion, where audita querela was formerly brought. Cited 3 Black. Com. 406.

Mr Scott, for the defendants in error, contended that this case was not properly before the court.

The supreme court, although a court exercising common law jurisdiction, was a court of statutory jurisdiction; and we must look to the constitution of the United States and the acts of congress for the subjects proper to be brought before the court. A writ of error will not lie to bring up an execution from a circuit court, and more than five years had elapsed from the rendition of the judgment before the issuing of the writ of error: and the court could, therefore, take no cognizance of the judgment of the circuit court, or of the proceedings upon that judgment, because a writ of error would not lie upon the judgment after five years: and there was no provision in any act of congress for bringing up an execution.

He also contended, that the proceedings on a judgment come properly within the discretion of the court be which the judgment was rendered; and in England a writ of error would not lie merely to bring up an execution; and where the king's bench in England had quashed an execution, which had been issued by another court, and which had been brought before that court, the judgment, upon which the execution had been issued, as well as the execution itself, had been brought before the court, and that the court had proceeded to quash, for error in the judgment. In this case there was no error in the judgment, and none was alleged; if there were error, this court could not correct it after five years: and, independent of the first objection, this court could not look at the execution, the judgment not being properly before it.

He also contended, that even if this case were properly before this court, the writ of venditioni exponas was properly issued, and the motion to quash it was...