US SUPREME COURT DECISIONS

A judgment was obtained in a state court of Alabama against B. and M., and the sheriff, under an execution issued upon the judgment, levied upon certain slaves as the property of the defendants. They were claimed by L. and were delivered to him, he having given a bond to the sheriff to try the title, and for the forthcoming of the slaves, according to the law of that state. H. had obtained a judgment against B. and M. in the District Court of the United States for the District of Alabama, acting, as a circuit court; under an execution issued on this judgment, the marshal levied on the slaves, and they were claimed by L. The marshal returned that they were so claimed, upon which an issue was formed in the district court to try the title of L. to the slaves. L. gave in evidence the record of the judgment in the state court against B. and M. and the proceedings under it. Certificates of the records were given on 4 December, 1334, and they showed that the suit respecting the right of property in the slaves had been continued at March term, 1834, but did not show whether any further proceeding in the case had taken place at the preceding spring term of

the state court. The district court instructed the jury that the records of the state court were legal evidence by which they might infer the proceedings were

still depending and undetermined in the state court. Held that the instruction was correct.

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 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 special property vest in the one or the other, or both of them? No such case can exist; property, once levied on, remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer, and especially by an officer acting under a different jurisdiction. chanrobles.com-red

Page 35 U. S. 401

On the giving of the bond, the property is placed in the possession of the claimant. His custody is substituted for the custody of the sheriff. The property is not withdrawn from the custody of law. In the hands of the claimant, under the bond for its delivery to the sheriff, the property is as free from the reach of other processes as it would have been in the hands of the sheriff.