TAYLOE V. THOMSON'S LESSEE, 30 U. S. 358 (1831)

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U.S. Supreme Court

Tayloe v. Thomson's Lessee, 30 U.S. 5 Pet. 358 358 (1831)

Tayloe v. Thomson's Lessee

30 U.S. (5 Pet.) 358


It seems there is no act of assembly of Maryland which declares a judgment to be a lien on real estate before execution issued and levied. But by an Act of Parliament of 5 George II ch. 7, lands in the colonies are subject to execution as chattels in favor of British merchants. This statute has been adopted and in use in Maryland ever since its passage as the only one under which lands have been taken in execution and sold.

It is admitted that though this statute extends in terms only to executions in favor of British merchants, it has long received an equitable construction applying it to all judgment creditors, and that this construction has been uniform throughout the state.

As Congress has made no new law on this subject, the circuit court were bound to decide this case according to the law of Maryland, which does not consist merely of enactments of their own or the statutes of England in force or adopted by the legislature. The decisions of their courts, the settled and uniform practice and usage of the state in the practical operation of its provisions evidencing the judicial construction of its terms, are to be considered as a part of the statute, and as such furnish a rule for

the decisions of the federal courts. The statute and its interpretation form together a rule of title and property which must be the same in all courts. It is enough for this Court to know that by ancient, well established, and uniform usage, it has been acted on and considered as extending to all judgments in favor of any persons, and that sales under them have always been held and respected as valid.

Though the statute of 5 George II does not provide that a judgment shall be a lien from the time of its rendition, yet there is abundant evidence that it has always been so considered and acted on.

The plaintiff in a judgment has an undoubted right to an execution against the person and the personal or real property of the defendant; he has his election; but his adoption of any one does not preclude him from resorting to the other if he does not obtain satisfaction of the debt on the first execution. His remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied.

A capias ad satisfaciendum executed does not extinguish the debt for which it issued. If the defendant escape or is discharged by operation of law, the judgment retains its lien, and may be enforced on the property of the defendant; the creditor may retake him if he escape or sue the sheriff.

We know of no rule of law which deprives the plaintiff in a judgment of one remedy by the pursuit of another or of all which the law gives him. The doctrine of election, if it exists in any case of a creditor, unless under the statutes of bankruptcy, has never been applied to a case of a defendant discharged under an insolvent act by operation of law.

The greatest effect which the law gives to a commitment on a capias ad satisfaciendum is a suspension of the other remedies during its continuance; whenever it terminates without the consent of the creditor, the plaintiff is restored to them as fully as if he had never made use of any. chanrobles.com-red

Page 30 U. S. 359

The escape of the defendant by his breach of prison bounds could not effect the lien of the judgment; the plaintiff was not bound to resort to the prison bond as his only remedy; a judgment on it against the defendant was no bar to proceeding by fieri facias.

The 5th section of the act of Congress for the relief of insolvent debtors declares that no process against the real or personal property of the debtor shall have any effect or operation except process of execution and attachment in the nature of execution, which shall have been put into the hands of the marshal antecedent to the application. The application of this clause in the section was intended only for a case where one creditor sought to obtain a preference by process against the debtor's property after his application. In such case, the execution shall have no effect or operation, but where the encumbrance or lien had attached before the application, it had a priority of payment out of the assigned fund.

This was an ejectment brought by the defendant in error in the circuit court for the recovery of a lot of ground in the City of Washington. The defendant pleaded the general issue, and on the trial a verdict was given for the plaintiff below, subject to the opinion of the court on a case agreed, which is stated at large in the opinion of the Court. chanrobles.com-red

Page 30 U. S. 364


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