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January 1, 1836


IN error to the district court of the United States for the southern district of Alabama.

The opinion of the court was delivered by: Mr Justice M'lean 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 the 14th of December 1833, a judgment was entered in that court, in favour of John Hagan, against William D. Bynum and Alexander M'Dade, for the sum of 2972 dollars and 58 cents, besides costs; and that an execution was issued against the goods and chattels, lands and tenements of the defendants, which, on the 19th of 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 M'Dade: and upon which judgments, it was proved, executions had regularly issued to the sheriff of Montgomery county, which, on the 10th of 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 the 25th of 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 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 the 4th of 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 they might infer from the proof before them, 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 the 24th of 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, 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 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 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 ...

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