author: Mr. Chief Justice TANEY

text:
    Amos Kendall, Plaintiff in error, v. William B. Stokes, Lucius W. Stockton, and Daniel Moore, survivors of Richard C. Stockton, Defendants in error.
    [The reader is referred to a former case between these parties, reported in 12 Peters, 524. The decision of the court in the present case is .so intimately connected with the facts fn both, that it is impossible to give a clear account, of the principles established, without a reference to those facts.]
    After the decision in the former case, Stokes, &c., brought a suit against Kendall, which rested ultimately on two counts, viz., the first and fifth. The first claimed damages for the suspension, by Kendall, on the books of the Post-office Department, of certain credits which had been entered by his predecessor. Thé fifth, for the refusal, by Kendall, to credit Stokes, &c., with the •amount awarded in their favour by the solicitor of the Treasury.
    The damages claimed in the first count constituted a part of the reference to the solicitor, as shown by the plaintiffs below ini their own evidence.
    After a reference, an award, and the reception of the money awarded, another suit cannot be maintained on the original cause of action, upon the ground ■ that the party had not proved, before the referee, all the damages he had sustained, or that his damage-exceeded the amount which the arbitrator awarded.
    The acts complained of were not ministerial, but were official acts, done by Kendall in his character of postmaster-general. A public officer, acting from a sense of duty, in a matter where he is required to exercise discretion, is not •liable to an action for an error of .judgment.
    With regard to the fifth count, the application for thé mandamus covered the same ground as that taken in this count. Both rested on the refusal of Kendall to pay a sum of money to which Stokes, &c., were lawfully entitled.
    But where a party has a choice of remedies for a wrong done, selects one, proceeds to judgment, and reaps the fruits of his judgment, he cannot afterw.ards ' proceed in. another suit for the same cause of action.
    This is especially true where the party has resorted to a mandamus, because it is not issued where the law affords a party any other adequate mode of redress. To allow him to maintain another suit for the same cause of action would be inconsistent with the decision of the court which awarded the mandamus.
    Evidence of special damage was improperly admitted, under'the circumstances of the case in the court below.
    This case was brought up, by writ' of error, from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington.
    The Supreme Court of the United States having affirmed (12 Peters, 524) the decision of the Circuit Court, awarding a mandamus against Amos Kendall, application was made by Stokes,' &c., to Kendall, that the sum of money mentioned in the proceedings should be carried to their credit on the books' of the department. Kendall declined to interfere in the matter, upon the ground that the “ auditor” had change of the books, and that he himself had no power to settle claims, and no money to pay them with. On the 30th of March, 1838, a peremptory mandamus was issued by the Circuit Court, commanding him to obey and execute the act of Congress immediately upon the receipt of the writ, and certify perfect obedience to it on the 3d of April next.
    On the 3d of April, Mr. Kendall addressect-a letter to the court, saying that he had communicated the award of the solicitor of the Treasury to the auditor, and received from him official information that the balance of said award had been entered to the credit of the claimants, on the books.
    In October, 1839, Stokes, &c„ brought a. suit against Kendall. The declaration consisted of five counts, three of which were abandoned after a verdict and motion in arrest of judgment. The two remaining were the -first and fifth.
    The first count averred,' in substance, that the plaintiffs, with Richard C. Stockton, deceased, under and in the name of said Richard, were contractors for the transportation of the mails of the United States, by virtue of certain contracts' entered into between: them and the late William T. Barry, then postmaster-general of the United States. That the said William T. Barry, as postmaster-general', did cause certain credits to be given, allowed, and entered in tiie books, accounts', and proper papers-in the Post-office Department, in favour of the plaintiffs and said Richard, as such mail contractors, under and in the name of said' Richards That the defendant, on succeeding Mr. Barry in the office of postmaster-general, wrongfully,' illegally, maliciously, and oppressively caused said items of account, so entered, and credited, and allowed, and upon which payments had been made, to be suspended on the books, accounts, and papers of the Post-office Department; and did cause said plaintiffs and said Richard, under, and in the name of said Richard, to be charged on said books, papers, and accounts, with said several items and sums of money, amounting to $122,000.
    The 5th count averred the passage óf a private act of Congress, entitled “An act for the relief of Wm. B. Stokes, Richard C.- Stockton, Lucius W. Stockton, and Daniel Moore,” by which the solicitor of the Treasury was authorized arid required to determine on the equity of the claims of them, or any of them, .growing out of certain alleged contracts between them and Mr. Barry, and by’which the postmaster-general was directed to credit them with such ainounts as might be awarded,-pursuant to the act. This count also averred the actual rendition of an award by Virgil Maxcy, then solicitor of the Treasury, for the sum of $162,727 05, in favour of Richard C. Stockton, as the. representative of himself and the plaintiffs below, and the refusal of Mr. Kendal to comply fully with the terms of the award, by Crediting them with the full amount awarded.
    The cause came on for trial at November term, 1841, which resulted in a verdict for the plaintiffs.,
    After the rendition of the verdict .aforesaid, the defendant produced the following certificate by the said jurors, and prayed the court to be permitted to have the same entered on the minutes of the court, to which the court assented. -
    “We, the jurors, empannelled in the case of William B..Stokes and others v. Amos Kendall, and in which case we have this day rendered our verdict for the plaintiffs for $11,000, do hereby certify that said verdict, was not founded' on any idea that the defendant performed the acts complained of by the plaintiffs, and for which we Sve damages as above stated, with any intent other than a desire thirdly to perform the duties of' his office .of postmaster-general,, and protect lie public interests committed to his charge; but the said damages were given by us on the ground that the acts complained of were illegal, and that the said sum of $11,000 ivas the amount of actual damage to plaintiffs estimated by us to have resulted from said illegal acts.”
    Upon the' trial the defendant took three bills of exceptions.
    The 1st exception was .to the competency of the evidence to sustain the action. The evidence offered by .the plaintiffs was:
    1.A .transcript of the record in the ¡mandamus case.
    2.The report of Virgil Maxcy, solicitor of thé'Treasüry.
    3.Sundry letters and documents.
    4.Oral testimony relating to the partnership.
    The defendant offered four prayers to the court, praying instructions to the jury that the defendant was not responsible to the plañir tiffs in the right in which they then sued under the 1st count; that he was not liable under the 5th count for refusing to comply with so much of the award of the solicitor as he, on the ground of want' of jurisdiction in the said solicitor, refused to comply with; that he was not liable for consequential damagesand that the plaintiffs had no joint right of action.
    All- of which prayers were refused by the court, to which refusal the defendant excepted.

      2d Bill of Exceptions.
    The defendant then offered in evidence sundry depositions and papers:
    1. The depositions of Andrew Jackson, Martin Van Burén, and B. T. Butler.
    2. Correspondence between Mr. Kendall and the attorney-general..
    . 3. The attorney-general’s opinion, Document No. 123,26th Congress, 2d session, House of Rep. Ex; Doc. page 1010.
    4. Letter from the solicitor of the Treasury.
    5. Reports of post-office committees of Senate and House.
    6. The evidence of Francis S. Key, Esq.
    Upon all which evidence the defendant founded four prayers:
    1. That plaintiffs were not contractors.
    2. That defendant was not liable if he acted drona a conviction that it was his official duty' to set aside the extra allowances.
    3-. That he was not liable if he acted from a conviction that the solicitor had no lawful jurisdiction to audit and adjust the items, &c.
    4. That he was not liable for any of his acts, if the jury believe . that he acted with the bond fide intention to perform duly the duties of his office, and without malice or intention to injure and oppress the plaintiffs. '
    All of which prayers the court refused to grant, and to the refusal the defendant excepted.
    3d Bill of Exceptions.
    The plaintiffs offered evidence to prove their special expenses and losses, such as counsel-fees, tavern-bills, discounts, See., to the admission of which evidence the defendant objected; but the court overruled the objection and allowed it to be given. To which overruling the defendant excepted.
    The case came up upon all these grounds,

      Dent and Jones, for the plaintiff in error.

      Coze, for defendants.

      Dent laid down the following propositions:
    1. That the official acts complained of in the declaration amount to nothing more than a breach of contract, and a refusal to pay money due by contract and award.
    2. That these acts, with what motives, aggravations, or consequences soever accompanied, lay no ground for an action, sounding,, in damages, as for an official or personal tort or misdemeanor.
    3. But as the case is now presented by the record, it is a conees-sum, that the defendant’s motives for the acts complained of were clear of all malice, self-interest, and intention to yex, harass^ injure, or oppress'the plaintiffs, and proceeded from no other intent than a desire faithfully to perform the duties of his office, and to protect the public interest committed to his charge; and that if the acts complained of were in truth illegal, or in any way a transgression of his public duties, (which is altogether denied,) they resulted from an honest mistake and misapprehension of the authority and duties of his office; consequently, the broad question is new presented, whether an honest misapprehension of the rights óf the plaintiffs bp-low, and a contestation of those rights, under the influence of honest mistake, and-in the manner and form appearing by the declaration and evidence in the cause, be an official or personal tort or misdemeanor. We maintain the negative of this question.
    4. If the plaintiffs have shown, either in pleading or in evidence, any cause of action, still we except to all the evidence of special damage pretended to have been sustained by the plaintifls, in consequence of the defendant’s refusal to allow and pay them the several sums of money pretended to be due under their contract — such as discounts and usury paid by them for money borrowed, expenses of •travel, large fees to counsel, tavern-bills, and other expenses incurred in pursuit of their claim against the Post-office Department. We maintain that the only measure of damages for withholding money due, (whether on public or private account,) is the legal interest on the sum due.
    5. That all right of action (if any such ever existed, which is denied) for the pretended misfeasance complained of in the first count, was completely extinguished and barred by the act of Congress authorizing the solicitor of the Treasury to settle and adjust the claims of the plaintiffs and R. C. Stockton, or any of them, for the extra services, &c., in the act mentioned, and by the full and final settlement .and adjustment of the same by the solicitor, as shown by the plaintiffs.
    6. That all right of action (if any such ever existed,-which is denied) for the pretended nonfeasance complained of in the 5th count, (to wit, the non-payment of a certain portion of the solicitor’s award,) was extinguished and barred by the plaintiffs’ election of their remedy by mandamus, and the result of the procedure on such mandamus, as shown by the plaintiffs.
    7. That the defendant, as postmaster-general, had authority, and was primá fade justified, by the circumstances of the case,, for both the acts of pretended misfeasance and nonfeasance complained of: . 1st,-for originally contesting their claims for the pretended extra ser-. vices afterwards referred to the solicitor of the Treasury; and 2dly,. for maintaining that, the solicitor of the Treasury had exceeded the scope of the authority committed, to him by the act of Congress, in allowing certain claims not within the terms of the submission to his award, as defined in the act of Congress; and, consequently, for refusing to pay so much of the solicitor’s award as allowed such inadmissible claims.
    8. That there is a fatal misjoinder of parties in this action; inasmuch as the plaintiffs, by their own showing, both in pleading and in evidence, have no such joint rights of contract or action as they have sued on in this case.

      9. That from their own exhibit of the original contracts, under which all the plaintiffs’ claims arise, taken in connection with the acts’ of. Congress, relating to the premises, the plaintiffs’, own case, upon their own showing, absolutely concludes against any such joint rights of contract and action as are asserted in thfe first count.
    10. That from their own exhibit of the awards of the solicitor of the Treasury, referred to in their 5th count, their case, upon their own showing, equally concludes against such joint rights of action as are asserted in the 5th count.
    Consequently, the evidence of O. B. • Brown ought to have been ' rejected,-as incompetent and inadm able; and the court ought to-have allowed the several instructions asked by the defendant in regard' to such joint rights.
    Ü. We maintain generally, and without' exception, that the points of evidence, and of law, raised by the defendant in -the course of the trial,, and in arrest of judgment, (as set forth.in-the several bills' of exceptions and motions in arrest of judgment, already referred to,) ought to have -been sustained by the Circuit Court, and were erro-. nequsly overruled.by that court.

      Dent .went largely into'the history of the case, referring to many • of the public documents which have been mentioned. He then took up the points, and contended that the act- of 1825, (3' Story, 1985,) made the postmaster-general ¿.disbursing, officer of all the revenue of the department. See also 3 Story, 1630-,, the 4th section of the act of March 3d, 181*7; ’2 Story, 1091, 5th séction of the. aqt of-April 21st, 1808; Gidley v.-Palmerston, 7. J. B. Moore, 91-, 108; 3 Brod.' & Bingh. 275 ;.'7- Com. Law Rep. 434,
    . On the third point he cited 1 East, 555, 558, and 564, note; 11 Johns. 114.
    Tlie fourth point he thought too clear to be discussed.
    On the fifth and sixth points he contended that the plaintiffs were' precluded from this action, by having already elected their remedy. 2 Wm. Black, edition of 1828, 779, 827; 4 Rawle, '287 — 299; 17 Pickering, 7 — 14’; 6 Wheat. 109 ;. 1 Salk. 11; 2 Bos. & Pul. 71; 7 Johns. 21; 8 Johns. 384.
    ■ The evidence which the plaintiffs introduced in this casé is the same which they brought before the solicitor to obtain his award, and also in the mandamus-case; and this may be shown under'a plea of-the general issue as well .as. under a plea, in bar.. Young v. Black. 7 Cranch, 565.

      Coxe, for defendants in error,
    referred to numerous documents to show that there was no misjoinder they recognised as joint contractors; He denied that it, was • a concessum that there was no malice; on the contrary, it is averred in the declara'tion. He. denied also that- the merits of this case had ever béen .settled.' They were not by the solicitor of the Treasury, whose..province- it was to decide on the legality or illegality, of Mr. Kendall’s conduct in suspending the payments. They were not settled .in. the ’mandamus case, which related to an entry which Mr. Kendall refused to make. The Circuit Court directed him to make it, and the Supreme Court affirmed the decision. 12 Peters, 609.
    Having disposed of some preliminary objections, Mr. Coxe proceeded to discuss the liability of public officers to pay money withheld, and cited 6 T. R. 443; 3 W-ils. 443 ; 2 Kane,' 312; 6 Mun. 271; 11 Mass. 350; 3 Wheat. 346; 2 Cranch, 175; 1* T. R. 493; 7 Mass. 282 ; 2 Wm. Black. 1141; 5 Johns. 282; 9 Johns. 395; 13 Johns. 141; 1 Cranch, 137; 10 Peters, Swartwout’s case.
    The defendants’ conduct was illegal. See 15 Peters, case of Bank of Metropolis; 9 Clarke &' Finnelly Rep. 251, 278, 283; Lynd-hurst’s opinion, 284; Ld. Brougham’s opinion, 287-^-303, as to malice; 310, Ld. Campbell’s'opmion.

      Jones, in reply and conclusion, referred to several parts of the record to show.that there was hot such a partnership hs would enable the plaintiffs to sue; and to other parts to show that malice in Mr. Kendall was wholly out of the case. This destroyed all claim for consequential' damages.
    He then discussed what, constitutes an illegal act . in a public officer, so as to make him liable in damages for withholding money, and referred to Story on Agency, 308, sect. 305; 1 Cranch, 345’
    Upon what grounds actions ex delicto have been maintained against a public officer,’he referred to 1 East, 562,'568;, and to show what description and quality of officers are liable to this action, he referred to the casé of Gidley v. Ld. Palmerston, 111.
    If the action be -really founded upon a fa m of contract, .yet, being mixed up with "tort, every defence, goog against the form ex con-tractu, is good against the tort. 1 Eááhasse, 172; 8 Durn. & East, '335.
    An acton will lie against a public officer only when the duty to be performed'is wholly ministerial;-and never in a case where judgment is to ■ be - exercised.' United States' v. Bank of Metropolis, 15 Peters,. 403.
    As to ffie mandamus case, Mr. .Kendalí did not disobey, for ffie extra allowance extended only to ffie end of ffie first quarter of 1835.
   Mr. Chief Justice TANEY

delivered ffie opinion of ffie court.

The record- in this case is very voluminous,, and contains a'great mass of testimony, and' also many incidental questions of law not involving ffie merits of ffie case, which.were raised- and', decided in ffie Circuit Court, and to which exceptions were taken by the plaintiff in error. But. both parties have expressedj their desire-tnat ffie controversy should now be terminated by the judgment of this court; and that ffie leading principles which must ultimately ■ decide the rights' of ffie parties should, now be settled; - and that the case should not be disposed of upon any technical or other objections which would leave it open to further litigátion. In this view of the subject it is unnecessary to give a detailed statement of th* proceedings in the court below. Such a statement would render this opinion needlessly tedious and complicated. We shall be better understood by a brief summary of the pleadings and evidence, together with the particular points upon'which our decision turns';'léáving-unnoticed' those parts of the record which can have no influence on the judgment we are about to give, nor vary in any degree the ultimate rights of the parties.

At the time of the trial and verdict in the Circuit Court the declaration contained five' counts. But after the verdict was rendered, the plaintiffs in that court, with the leave of the court, entered a nolle prosequi upon the second, third, and fourth; and the judgment was entered-on the first arid the fifth. It is only of these two last mentioned counts, therefore, that it is necessary to speak. The verdict, was a general one for the plaintiffs, and their damages assessed at $11,000..

The first count states that by virtue of certain contracts made with WiÚiam T. Barry, while he was postmaster-general, and services performed under them, the plaintiffs on the 1st of May, 1835, were entitled to receive and have allowed to them the sum of $12.2,000, and that that stun was accordingly credited to them on the books of the Post-office Department; and that Amos Kendall, the defendant in the court below, afterwards became-postmaster-general, andas-such illegally and maliciously caused the items composing the said amount to be suspended on the books of the department, and the plaintiffs to be charged therewith: whereby they were greatly-injured, and put to great expenses, and suffered in their business.and ■ credit.

The fifth count recites the act of Congress of July 2d, 1836, by which the solicitor of the. Treasury was authorized to settle and adjust the claims of the plaintiffs for services rendered by them under contracts with William T. Barry, whilé he was postmaster-general, • and which had been suspended by Amos Kendall, then postmaster-general,, and to make them such allowances therefore as.upon a full examination of all the evidence might seem right and according to principles of equity; and the' postmaster-general directed to credit them with whatever sum or sums of money the solicitor should decide to be .due to them, for or on account of such service or contract ; and after this recital of the act of Congress, the plaintiffs proceed to aver that services had been performed by them under contracts.with William T. Barry, while he was postmaster-general, on whicl. their pay had been suspended by Amos Kendall, then post-' master-general, and that for these claims the solicitor of the Treasury allowed the plaintiffs large sums of money amounting to $162,727 05; that the defendant had notice of the premise?, and that it became his duly as postmaster-general to credit the .plaintiffs with this sum; but that he illegally and maliciously refused to. 'give the credit, by reason whereof the plaintiffs were subjected to great loss, their credit impaired, and they were obliged to incur heavy expenses in prosecuting their rights, to their damage in the sum of $100,000.

The defendant plead not guilty, upon which issue was joined.

At the trial, the plaintiffs offered in .evidence the record of the proceedings in the mandamus which, issued , from the Circuit Court upon their relation on the 7th day of June, 1837, commanding the said Amos Kendall to enter the credit for the sum awarded by the solicitor. It is needless to state at large the proceedings in that suit; as they are sufficiently set. forth in the report of the case in 12 Peters, 524; the judgment of the Circuit Court awarding a peremptory mandamus having been brought by writ of error before the Supreme Court, and there affirmed at January term, 1838. Various papers and letters were also offered in evidence by the plaintiffs to show that the allowances mentioned in the declaration had been suspended, by the defendant; and that after the award of the solicitor, andfoefore the original mandamus issued, he had refused to' credit $39,472 47,' part of the sum awarded, upon the ground that the items composing it were not a part of the.subject-matter referred; Und upon which, as the defendant insisted, the solicitor had no right to award. Other papers and letters were also offered showing that after the judgment of the Circuit Court awarding a peremptory mandamus had been affirmed in the-Supreme Court, the,plaintiffs demanded a credit for the above-mentioned' balance on the. 23d of* March, 1838: that the defendant declined entering the credit, alleging that a recent change in the post-office law had placed the books and accounts, of the department in the custody of the auditor;. and some, difficulty having arisen on this point, the Circuit Court, On the 30th of March, 1838, issued a mandamus commanding the postmaster-general to enter the credit on the books of the department; and to this writ the defendant made return on the 3d of April, 1838, that the said credit had been entered by the auditor who had the legal custody of the books. .

The whole of. this evidence was objected to by the defendant, but the objection was overruled and the testimony given to the jury. And upon the evidence so offered by the plaintiffs, before any evidence was produced on his part, the defendant moved for the following instruction from the court:

“ The defendant, upon each and every, of the plaintiffs’ said counts, severally and successively prayed the opinion of the court, and. their instruction to the jury that the evidence so as aforesaid produced and given on the "part of the plaintiffs, so far as the same is competent to sustain such count, is not competent and/sufficient to be left to the jury as evidence of any act or acts doné or omitted or refused to be done by the defendant, which legally laid him liable to the plaintiffs in this action, under such' count, for the.consequential' damages claimed by the plaintiffs in such corut.” — This instruction was refused and the defendant excepted.

The question presented to the court by .this motion in substance was this: — Had the plaintiffs upon the evidence adduced by them shown- themselves entitled in point of law to'maintain their action for the causes stated in their declaration upon the breaches therein assigned, assuming that the jury believed the testimony to be true?

The instruction asked for was in the riature of a demurrer-to the evidence, and in modern practice'has, in some of the states, taken . the place of it. In the Maryland courts, from which the Circuit Court borrowed its practice, >a prayer of tins' description at the time - of the'cession of the District and'for a long time before, was a familiar proceeding, and a demurrer to evidence seldom, if ever, resorted to. And the.refusal of the court was equivalent to an instruction that the plaintiffs had shown such a cause of action as would authorize the jury, if they believed the- evidence, to .find a verdict •in favour of the plaintiffs, and to assess-damages against the defendant for the causes of action stated in the declaration.

, Now the cause of action stated in the first count is the suspension, •by the defendant, of the allowances made by his predecessor in office; and of the recharge of sums with which the plaintifis had. been credited by Mr. Barry when he was the postmaster-general. And it appeared in evidence, by the proceedings in the mandamus, that the plaintiffs being unable' to settle with the defendant the dispute between them on the subject, they applied to Congress for relief; that upon this application a law was passed referring the' rhatter to the solicitor of the Treasury, with directions that he should inquire into, and determine the equity of these claims, and make them such allowances therefor as might seem right according to .the principles- of equity; and that the postmaster-general should credit them with whatever sums of money, if, any, the solicitor should decide to be due; that the plaintiffs1 assehted to this reference,'- and-offered evidence before the solicitor that they were entitled to the allowances and credits claimed by them; and that, from the conduct of "the postmaster-general, in suspending and recharging these allowances and credits, they had been compelled to .pay a large amount in discounts and interest, in order to carry on their business ; and that-the solicitor had finally determined in favour of their claims, and awarded to them the sum hereinbefore mentioned, giving them, as appears in his report to Congress, interest on the money withheld from them; and also, that, before this suit was brought,' they had obtained a credit on the.books of the department for the whole sum awarded-by the solicitor.

Assuming, for the sake of the argument, that an action might in the first instance have been sustained against the postmaster-general, can the plaintiffs still support a suit upon the original cause-of. action ? It was not a controversy between the plaintiffs and Amos Kendall as a private individual, but between them and a public officer acting for and on behalf of the United States. If they had sustained damage, it was the consequence of his act, and the question of damages was necessarily referred with the subject-matter in controversy, out of which that question arose. It. was an incident to the principal matters referred, and therefore within the scope of the reference; and it is not material to inqúire whether damages for the detention of the money were claimed or not, or allowed or not. In point of fact, however, the plaintiffs did claim interest on the money' withheld as a- damage sustained from the conduct of the postmaster-general, and offered' proof before the solicitor of the amount of discounts and interest they had been compelled to pay;' and, moreover, were allowed, in the award., a large sum. on • that account, which' was paid to them as well as the principal sum. The question, then, on the first count is, can a party, after a reference, an award, and the receipt of the money awarded, maintain a Suit on the original- cause of action upon the ground that he had not proved, before the referee, all the damages he had sustained? or that his damage exceeded the amount which the arbitrator awarded? We think not. The rule on that subject is well settled. It has been decided fin many cases, and- is clearly stated in Dunn-v. Murray, 9 B. & C. 780. The plaintiffs, upon their own showing, therefore, were not entitled to "maintain their action on the first count, -and:the Uircuit Court ought .so to have directed the jury.

The judgment upon this count is also liable to another objection equally fatal. The acts complained of were not what the law terms ministerial, but we!re official acts done by the defendant in his character, of postmaster-general. The declaration, it is true, charges that' they were maliciously done, but that was not the ground upon which ffie Circuit'Court sustained the fiction eithef on this count or the fifth. For,- among other, instructions moved for oh .behalf of the defendant, the court .were requested to direct the jury:

“ That, if .they found from the evidence '.that the postmaster-general acted from the- conviction that he had láwful' power and authority, .as postmaster-general to- set aside-the extra allowances made by his predecessor, and to suspend and recharge the same, and from a conviction that it was his official duty to do so; and if ffie plaintiffs suffered' no injury from such official act, but the inconveniences necessarily resulting therefrom, that ffie defendant was not liable.” _ •

_ This.instruction was. refused; the court thereby.in effect giving ffie jury to understand that however correct and praiseworthy ffie motives of the officer might be, he was still liable to ffie action, and chargeable with damages.

We are not aware of any case in England or in this country in which.it has .been held that a officer, acting to ffie~best of his judgment and from a sense of duty, in a matter .of account with an individual, has been held liable to an action for an error of judgment. The postmaster-general had undoubtedly the right to examine into this account, in order to ascertain whether there were any errors in it which he was authorized to correct, and whether the allowances had in fact been made by Mr. Barry; and he had a rightto suspend these items until he made his examination and formed his judgment. It repeatedly and unavoidably happens, in transactions with the government, that money due to an individual is withheld from him lor a time, and payment suspended in order to afford an opportunity for a more thorough examination. Sometimes erroneous constructions of the'law may lead to the final rejection of a’claim in cases •where it Ought to be allowed. - But a public officer is not liable to an, action if - he falls into error in a case where the act to be done is not-merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion; even although an individual may suffer by his mist alce. A contrary principle would indeed be pregnant with the greatest mischiefs. ' It is unnecessary, we think,, to refer to the many cases by which this doctrine has been established. It was fully recognised in the case of Gidley, Exec. of Holland, v. Ld. Palmerston, 7 J. B. Moore, 91, 3 B. & B. 275.

The case in 9 Clark & Finnelly, 251, recently decided in England, in the House of Lords, has been much relied on in the argument for the defendant in error. But upon an examination of that case it will be found that it hacl been decided by the Court of Session in Scotland, in a former suit, between the same parties, that the act complained of was a mere ministerial act which the party was bound to perform; and that this judgment had been affirmed in the House of Lords. And the action against the party, for refusing to do the act, was maintained, not upon the ground, only that it was ministerial, but.because it had been decided to be Such by the highest judicial tribunal known to the laws of Great Britain. The refusabfor which the suit was brought took place after this.decision; and the learned Lords, by whom the case was decided, held that the act of refusal, under such, circumstances, .was to be regarded as wilful, and with knowledge'; that the refusabto obey the lawful decree of a court of justice was a wrong for which the party, who had sustained jnjury by it, might maintain an action, and recover damages against the wrongdoer. This case, therefore, is in no respect in conflict with the principles above stated; nor with the rule laid down- in the case of Gidley v. Ld. Palmerston.

In the case before us the-settlement of the accounts of the plaintiffs properly belonged to the Post-office Department, of which the defendant was. the head. As the law then stood it was his duty to exercise his judgment upon them. He committed an error in supposing that he had a right to set aside allowances for services rendered upon which his predecessor in office had finally decided. But as the case admits that he acted from a sense of public duty and without malice, his mistake in a matter properly belonging to the department over which he presided can give no cause of action against him.

We proceed to the fifth count. But beforé we examine the cause of action there stated, it will be proper.to advert to the principles settled by this court in the case of the mandamus hereinbefore referred .to. The court in that case, speaking of the nature and character of the proceeding by mandamus, which had been fully argued at the bar, said that it. was an action or suit brought in a court of justice, asserting a right, and prosecuted according to the forms of judicial proceeding; and that a party was entitled to it when' there was no other adequate remedy; and that although- in the case then-before them the plaintiffs in the court below might have brought their action against the defendant for damages bn account of his refusal to give the credit directed by the act of Congress, yet as that remedy might not be adequate to afford redress, they were, as a matter oif right, entitled to pursue the remedy by mandamus.

Now, the former case was between these same parties, and the wrong then complained of by the plaintiffs, as well as in'the case before us on the fifth count, was the refusal of the defendant to enter a credit on the books of the Post-office Department for the amount awarded by the solicitor. In other words, it was- for the refusal to pay them a sum of money to-which they were lawfully entitled. The credit on the books was nothing more than the form in which thé act of Congress, referring the dispute to the solicitor, directed the payment to be made. For the object and effect of that entry was to discharge the plaintiffs from so much- money, if on other accounts they were debtors to that amount; and .if no other debt was due from them to the United States, the credit entitled them to receive at once from the government the amount credited. The action of mandamus was brought to recover it, and the plaintiffs show by their evidence that they did recover it in that suit. • The gist of the action in that casé was tire breach of duty in not entering the credit, and it was assigned by the plaintiffs as their cause of action. The cause of action in the present case is tire same; and the breach here assigned, as well as in the former case, is the refusal of the defendant to enter this credit. The evidence to prove thé plaintiffs’ cause of action is also identical in both actions. Indeed, the record of the proceedings in the mandamus is the testimony relied on to show the refusal of the postmaster-general, and the circumstances under which he refused, and the reasons he assigned for it. But where a party has a choice of remedies for a.wrong done to him, and he elects one, and proceeds to judgment, and obtains the fruits of his judgment, can he, in any case, afterwards proceed in another suit for the same cause of action? It is true that in the suit by mandamus the plaintiffs could recover notning beyond the amount awarded. But they knew that, when they* elected "the remedy. If the goods of a party are forcibly taken .away under circumstances of violence and aggravation,be may bring trespass, and in that form of action recover ‘•not only the value of the property, but also what are called vindictive damages — that is, such damages as the jury may think proper to give- to punish the wrongdoer. But if instead of an action of trespass he elects to bring trover, where he can recover only the value , of the property, it never has been supposed that,, after having proser cuted the.suit to judgment and received the damages awarded him, he can then bring trespass' upon, the ground that he could not in the action of trover give evidence of the circumstance of aggravation, which entitled him to demand vindictive damages.

-'The saíne principle is involved here.. The plaintiffs showr that they have sued for and recovered in the mandamus, suit the full •amount of.the award; and having- recovered the debt they now bring another suit upon the same cause of. action, because in the former one they could not recover damages for the detention of the money. The., law does not permit a party-to be twice harassed for the same, cause of action; nor suffer á plaintiff-to proceed in one suit recover the' principal sum of money, and then support another -to recover ■ damages for the detention; This principle will be found to be fully recognised in 2 Bl. Rep. 830, 831; 5 Co. 61, Sparry’s case; Com. Dig. tit. Action, K. 3. And in the 'case of Moses v. Macfarlan, 2 Burr. 1010, Ld. Mansfield held that the plaintiff having a right to bring an action of assumpsit for-money had and received to his use on a special action on the case on an agreement, and haying made his election by bringing assumpsit, a recovery in that- .action would bar one on the agreement, although in the latter he could not only -recover the money claimed in the action of assumpsit, but also the costs and expenses he had been put to. The case before us falls directly within the rule stated by Ld. Mansfield.

This objection applies with • still more force, when,' as in this instance, the party.has proceeded by mandamus. - The remedy in that form, originally, was not regarded as an action, by the party, but as a prerogative writ commanding the execution of an act, where otherwise justice would be obstructed; and issuing only in Cases relating-to' the public and the govémment; and it was never issued when the party had any other remedy. It is now regarded as an action by the party on whose .relation it is granted, but subject still to this restriction, that it' cannot be granted to a party where the law áffords him any other adequate means of r.edress. Whenever, therefore, a mandamus-is applied for, it is upon the gtound that he cannot obtain redress in any other form of proceeding. ■; And to allow him to bring another aotion for the very same cause after he has obtained the benefit' of the mandamus, would not only be harassing the defendant with two suits for the same thing, hut would be inconsistent with the grounds upon which he asked for the'mandamus, and inconsistent. also with the decision of the court which awarded it. If he had another remedy, which was incomplete and inadequate, he abandoned it fey applying for and obtaining the mandamus. It is treáted both by him and the court as no remedy. Such was obviously the meaning of the Supreme Court in the -Opinion delivered in the former suit between these parties, where -.they speak of the action on the case, and give him the mandamus, 'because the other form of action was inadequate to redress the injury, and they would not therefore require the' plaintiffs to pursue it. And they speak of the action on the. case as an alternative remedy; not as accumulative and in addition to the mandamus. .In the case in 9 Clark & Finnelly, 251, hereinbefore mentioned upon another point, the attorney-general in his argument said that no other action would lie in any case where the party was entitled to a mandamus. And Ld. Campbell, in giving-his judgment, said that this proposition-was hot universally true}-and at any rate applied only tQ the original 'grant of the mandamS'8, and not to the remedy, for. disobeying it; and that no case had been cited to show that an action would not lie for disobedience to the judgment of the court. This remark upon the proposition stated by the attorney-general shows clearly that in his judgment you could not resort to a. mandamus and to an action on the case also for the same thing: If the postmaster-general had refused to obey the mandamus, then indeed an action on the case might have been maintained against him. But the- present suit is not brought on that, ground. No question is presented here as to the necessity of pleading a former recovery in .bar, nor as to the right to offer it in evidence upon the general issue. The point in the Circuit Court did not arise upon the pleading of the defendant, nor upon' evidence offered by him; but upon the c^se made by the plaintiffs, in which, by the same evidence that proved their original .cause of. action, they'also proved that they had already sued the defendant upon it, and recovered a judgment, which had been satisfied before this suit was brought. And we think upon such evidence the instruction first above mentioned ought to have been given on: this (the. fifth) count, as it appeared by the plaintiffs’ own-showing, that they had’already recovered satisfaction for the injury complained of in their declaration. •

The case before us is altogether unlike the cases referred to -in the argument, where, after a party has been admitted or restored to an office, he has maintained an action of assuhipsit.or case to recover the emoluments which had been received by another, or of which he had been deprived during the time of his exclusion. In those casés the cause of action in the mandamus was the exclusion from office; and the suit afterwards brought was to recover the emoluments and profits to which his admission or restoration to office showed him to have been.legally entitled. The action of assumpsit or case would not have restored him to the office', nor have secured his right to the profits. But in the case before the court, if this action had been resorted to in the first instance, instead of the 'mandamus, the plaintiffs could have recovered the amount due on the award, and the damages arising from its unlawful detention must have been assessed and recovered in. the same verdict. Clearly, they could not have maintained one action on the case for the amount-due, and then brought another to recover the damages; and this, not because both were actions on the case, but because they could not be permitted to harass the. defendant with two suits for the same thing, no matter by what name the actions may be technically called, nor whether both are actions on the case, or one of them called a mandamus.

But if this action could have been maintained, we think that most of the evidence admitted by the Circuit Court to enhance the damages ought not to have been received.' It consisted" chiefly of discounts ana interest paid by.the plaintiffs before the award of, the solicitor, and of expenses on journeys and tavern bills, and fees paid to counsel for prosecuting their -claim - before Congress and the courts. It appears by the record that before this evidence was- offered the court had instructed'the jury, that-malice on the part of the defendant was not necessary to support the -Action; and. it appears also that the jury, which found the verdict and assessed the damages, declared that their Verdict wás not- founded on any .idea that the defendant did the acts complained of, and for which' they, gave the damages of $11,000,- with any intent, other than a desire faithfully to perform the duties of his office of postmaster-general, and to protect the public interests committed to his charge, and that the damages were given ■on the ground that his acts were illegal, and that the s.um given was the amount of the actual damage estimated to have resulted from his ■ illegal acts.

We have already said that although this action is in form.for a tort, yet in substance and in truth it is an action for the non-payment of money. And upon the. principles upon which it was supported by-the court, and decided by the jury, if there had been no proceeding by mandamus to bar the action, the legal measure of damages upon the fifth count would undoubtedly have been the amount due on the award;-with interest upon it^

The testimony, however, appears to have been offered chiefly under the first count, because the items for interest paid, and travelling and'tayern expenses, for the most part, bear dates before the award, and also a portion of the fees of counsel., The evidence was certainly inadmissible under this count, since, for the reasons already given, no action could be maintained upon it, if there had been no previous proceeding by mandamus, and consequently no damages could bé recovered upon it. But independently of this consideration, and even if the action could have been sustained, there' are insuperable objections to the admission of this testimony. In the first place, no special damages 'are laid 'in the declaration; and in that form of pleading no damages are recoverable,-but such as the law. implies to have accrued from the wrong complained of; 1 Chit. Pl. 385: and certainly the law does not imply damages of the description above stated. But we think the evidence was not admissible in any form of pleading. In the case of Hathaway v. Barrow, 1 Camp. 151, in an action on the case for a conspiracy to prevent the plaintiff from obtaining his certificate under a commission of bankruptcy, the court refused to receive evidence of extra costs incurred by the plaintiff in a petition before the chancellor. In the case of Jenkins v. Biddulph, 4 Bingh. 160, in an action against a sheriff for a false return, the court said they were clearly of opinion that the 'plaintiff was not entitled to recover the extra costs he had paid.; that, as between the attorneys and their clients,, the case might be different, because the attorney might have special instructions, which may warrant him in incurring the extra costs, but that in a case like the one before them the plaintiff could only claim such .costs as the prothonotary had taxed. And in the case of Grace v. Morgan, 2 Bingh. N. C. 534, in an action for a vexatious and excessive distress, the plaintiff was not allowed to recover as damages the extra costs in an action of replevin which the plaintiff had brought for the goods distrained; and the case in 1 Stark. 306, in which a contrary principle had been adopted, was overruled.

These were stronger cases for extra costs than the one before us. The admission of the testimony in relation to the largest item in these charges, that is, for interest paid by the plaintiffs, amounting to more than $9000, is still more objectionable. For it appears from the-statement in the exception that the very same account had been laid before the solicitor, and had induced him, as he states in his report to Congress, to make the plaintiffs an allowance in his award for interest, amounting to $6893 93. And to admit , this evidence again in this suit was to enable the plaintiffs to recover twice for the same thing; and after having received from the United States what was deemed by the referee a just compensation for this item of damage, to recover it over again from the defendant.

There are several other questions stated in the record, but it is needless, to remark upon them, as. the opinions already expressed dispose of the whole case. The judgment of the Circuit Court must be reversed.

[Forthe dissenting opinion of Mr. Justice McLéan, see App. p.800.]


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    Ex Parte Dorr.
    Neither the-Supreme Court, nor any other court of the United States, or judge thereof, can issue a habeas corpus to bring up a prisoner, who is in custody under a sentence or execution óf a state court,' for any other purpose than to be used as a witness.
    An application for a writ of error, prayed for without the authority of the party concerned, hut at the request'of his friends, cannot be granted.

      'Mr. Treadwell moved for,a writ of habeas corpus to bring up Thomas-W. Dorr, of Rhode Island, under the’ following circutn-stances :•—
    He stated that Dorr was charged with levying war against the state of Rhode Island, and sentenced to the' state’s prison for life, in June, 1844; that upon the trial a point of law was raised, whether treason could be committed against a state, but the court would riot permit counsel to argué it; that a motion was made to suspend' the sentence until a writ of error could be sued out to bring the case .before the. Supreme Court of the United States, but the court refused to suspend it. He then read affidavits to show that personal access to Dorr was denied, in consequence of which his authority could'not be obtained for- an application for such a Writ. The present motion for a habeas corpus was based upon this fact. There was no other mode of ascertaining whether or not -it was Dorr’s wish that his case should- be brought up to this court. " Under the 14th section of the Judiciary Act,- the power to- issue writ's of habeas corpus was vested in .the judges of the United States’ courts. 3 Story’s Com. tit. Jurisdiction, 588, 590, 594,.595, 603, 608, 610, 625.
    The .case was in itself proper to .be brought up. under the 25th section of the Judiciary Act, as the decision of the state court was thought to be inconsistent -with the Constitution of the United States.
   Mr. Justice McLEAN

delivered the opinion of the court.

'Thomas ,W. Dorr' was convicted before the Supreme Court of Rhode Island, at'March term, 1844, of. treason against the state of Rhode,Island, and .sentenced to the state’s prison for life. And it appears from the" affidavits of Francis C. Treadwell, a cotmsellor at law of this court, and others, , that personal access to Dorr, in his confinement, to ascertain whether he .desires a writ of error to remove the record of his. convictiori to this court, has been refused. On this ground the above application has been ihadé.

Have the court power to issue a writ of habeas corpus in this case? This is a preliminary question, and must be first considered.

The original jurisdiction of this court is limited by the Constitution to cases affecting ambassadors, other public ministers, and consuls,, and where a state is a party. Its appellate jurisdiction is -regulated by acts of Congress. Under the common law, it can exercise no jurisdiction-

As this case cannot be brought under the head of original jurisdiction; if sustainable, it must be under the appellate power.

The 14th section of the Judiciar Act of 1789 provides, “that the courts of the United States shall have power to issue writs of scire facias, habeas corpus, an.4 all other writs not specially provided for by statute, which may bé necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus for the purpose- of an inquiry into the cause of commitment: Provided that writs of habeas corpus shall in no-'case extend to prisoners in jail, unless where they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” ' ■ . * - •

- was which he was prosecuted, was repugnant to the Constitution of the United States. And on this ground a writ of error is desired., under thé 25th section of the Judiciary Act above named. That as the prayer for this writ can only be made by Dorr or by some one under his authority, and as access to him in prison is denied, it is insisted that the writ to bring him before the court,Is the only means through which" this* court , can exercise jurisdiction in his case bj a writ of error.' Even if this were admitted, yet the question recurs, whether this court has power to issue the writ to bring him before it. That it has no such power under, the common law is clear. And it is equally clear that the power nowhere exists, unless it be found in the 14th section above cited.

The power given to the courts, in this section, ."to issue writs of scire facias, habeas corpus, See., as. regards the writ oí,habeas corpus, is restricted by the proviso to -cases where a prisoner is “in custody under or by colour of the authority of the United States, or has been committed for triaibefore some court of the same, or is necessary to be brought into court to testify.” This is so clear, from the language of the- section, that any illustration of it would seem to be unnecessary. The words of the proviso are -unambiguous. They admit of • but one construction. And that they "qualify and restrict the preceding provisions of the section is indisputable.

Neither this nor any other court of the United 'States, or judge thereof, can issue a habeas corpus to bring up a prisoner, who is in custody under a sentence or execution of a state court, for any other purpose than to be used as a witness. And it is immaterial whether the imprisonment be ■ under civil or criminal process. As the law now stands, an individual, who may be indicted in a Circuit Court for treason against the United States, is beyond the power' of federal courts and judges, if he be in custody under the authority of a state. ' . '

Dorr, is in confinement under the sentence of the Supreme Court of Rhode Island, consequently this court has no power to issue a habeas corpus to bring him Before it. His presence here is not required as a witness, but to signify to the court whether he desires a writ of error to "bring before this tribunal the record of his conviction. ' °

The counsel in this application -prays for a writ of error, but as it appears from his own admission that he does not act under the authority of Dorr, but at tire, request of his friends, the prayer cannot be granted. In this view it is unnecessary to decide whether the counsel has stated a case, which, with the authority of his client, entitles him to a writ of error.

The motion for a habeas corpas is overruled.


text:
    Edward Curtis, Plaintiff in error, v. William Martin and Charles A. Coe, Defendants.
    An act of Congress imposing a duty upon imports must be construed to describe the article upon which the duty is imposed, according to the commercial understanding of the terms used in the law in our own markets at the time when the law was passed.
    The duty, therefore, imposed by the act of 1832 upon cotton bagging, cannot properly be levied upon an article which was not known in the market as cottpn- bagging in 1832, although it may subsequently be called so.
    This case was brought up by writ of error from the Circuit Court of the United States for the southern district of New York..
    It was an action brought in the court below by Martin and Coe against Curtis, the collector, for return of - duties upon certain importations of gunny cloth, from Dundee, in Scotland, from April to September, 1841.
    The facts in the case are clearly stated in the following brief of Mr. Nelson, attorney-general, who argued the case on behalf of Curtis, the plaintiff in error:—
    ■ . This was an action brought by the defendants in error against Curtis,. as collector of the port of New York, to recover back the sum of $4543 17 of duties, levied by him on a certain article as cotton bagging, which, they contended, was gunny bagging, a non-enumerated article in the tariff of-1832, and therefore duty free; and the. question in the cause was, whether this kind of bagging was cotton bagging within the meaning of the revenue laws ? The duties were paid under written protest annexed to each entry.
    By the tariff of 1832 It is enacted, that “ on cotton bagging three and a half cents a square yard, without regard to' the weight or width of the article,” of duty shall be collected. This duty, modified by the Compromise Act, was chargeable when the goods were imported.
    The imported article, used as bagging for the. packing of cotton, is principally manufactured in the town of Dundee, in Scotland, and, like the bagging of Kentucky, was made of hemp, until the material of which the gunny cloth of India is manufactured began to be used. Bagging for cotton has also been made of cotton.
    Gunny (Bengalee Gúni) is a coarse, strong'sackcloth, manufactured in Bengal, for making into bags, sacks, and-packing generally, the material being the fibre of two plants, natives of India, as.hemp originally was. (See article “ Gunny,” in McCulloch’s Dictionary of Commerce, American edition, vol. 1, p. 722.)
    Gunny bagging is now manufactured in Scotland, as well as in India; and it was admitted, on the part of-the defendants in error, that the-importations in question came from Dundee, and were made into New York between the months of April and September, 1841.
    It was established, by the testimony on both sides, that gunny cloth was imported largely into this country, solely for bagging for the packing of cotton, sinee""1835. In commercial language it has since been known as cotton bagging; but in 1832, at the time of the passing of the tariff of that • year, it vyas not so known. The counsel for the collector contended-, at the trial in the court below, that if the article was, in commercial understanding, known as cotton bagging at the time of its importation, it was subject to'the duty, and that the term cotton bagging signified any fabric, without fegard to che materials of which it is composed, that was used, to bale or cover cotton, and prayed the Court so to charge the jury, which his honour refused; 'but, on the contrary, charged that the point upon which the case turned was, whether the article in question was known as cotton bagging in the year 1832, when the tariff act was passed. He further charged that it was a settled rule of construe-' tion of revenue laws, imposing duties on articles of a specified .denomination, to. construe the article' according to the designation of such articles as understood and known in'commerce, and not with reference to the material of which they may be made, or the usé to which they might be applied; nor ought such laws' to be construed as embracing all articles which might be applied to the same use and purpose as the specific article. If it had been the intention of Congress to impose the' duty upon all articles used for cotton bagging, the language of the act would have been different, and in terms prospective, adapted to such purpose-; that it had been argued on the part of the United States that the duty was intended to-be laid on all articles used for cotton bagging, because the duty is laid on cotton bagging “without regard to weight or measure;” but that the terms “ weight and measure” were intended to apply to different materials then in-use for bagging cotton, such as hemp, flax, and sometimes cotton cloth, &c., and not to any new articles that might thereafter be applied to that use; so that the whole question was, whether gunny cloth was, in commercial understanding, known as cotton bagging when the law was passed laying the duty, in 1832? If it was not, they would find for the plaintiffs; if -it was, they would find for.the defendant. To which charge, in every respect, the defendant’s counsel excepted.
    The jury found for the plaintiffs,' now .defendants in error.

      The cause flow comes up bn a writ of error to this court, and for error it is assigned—
    That the judge ought to have charged the jury that the act of 1832 was prospective; and that the legislature, in using the term “cotton bagging,” without distinguishing the material' of which it was made, meant that all articles which thereafter should be imported for that púrpose should be subject to duty; and that gunny bagging, being known among merchants as cotton bagging at the time of the importation of the bagging in question, was subj ect to duty.

      'Lord, for defendants in error, said that the points in the case were the following:—
    1, That if gunny cloth was at the time of the passage of fhe act of July 14th, 1832,' in' commercial understanding, knowri as cotton bagging, it was liable 'to the -duty demanded under .the 14th clause of.the' 2d: section, of the act.
    2. But if not so known-at the time of the passage of such law, then it was not liable'to the duty on.cotton bagging. .
    Whereupon he contended for the two following propositions, viz.:
    1st. Under laws imposing .duties, articles are to be charged solely according to their cor unercial designation at the time of the passage of the law, and that whether the designation .be of a. class or of individual árdeles. For this he cited 1- Story’s R. 341, Bacon v, Bancroft; Ibid. 642, Lee v. Lincoln; 9 Wheat. 434, 438,- United States v. ‘2Ó0 chests tea; 8-Peters, 272, United States v. —— sugar; 1 Sumner, 159, United States v. Breed; 10 -Peters, 272, Elliott v. Swartwout.
    2d. .The construction claimed-here by the importers is fully admitted by the government in the act of August 30th, 1842, whereby cotton bagging and gunny cloth are subjected, as distinct articles, to different rates of duty. Acts of 27th Congress, 2d session, p. 180, section 3, clause 3.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

. This case, comes before the court upon a writ 'pf error directed to the Circuit Court for the sotitheril- district of New York. The action was brought by the defendants in error against the plaintiff, who was the collector of the port of New York, to recover back $4500, which had been paid,'under protest, as duties upon, certain goods imported into the port of New York, in April, 1841. The goods in question .were-gunny cloths, and were charged by the collector as cotton bagging. . ' .

The defendants in error offered evidence to show that, in 1832, when the law passéd imposing the duty on cotton bagging, the article in question was not used, or known as cotton bagging; that it was then only seen in the form of bags for India goods; that the first importation iof gunny cloth, to be used as cotton bagging, was in 1834. It is made from the yute grass.

The plaintiff in error, proved that these goods, at the time of the importation, were-Known in commerce as cotton bagging; that they were made of the proper, width for that purpose, and/ for several years before this importation, gunny cloths had been imported and used for cotton bagging; and that the goods in question were imported from Dundee, in Scotland'.

Upon this evidence, the counsel for the defendant contended that if the jury found that the .article gunny cloth was, in commercial understanding,. known as co.tton bagging, at-the time of its importation, it was subject to a duty; and that the term cotton bagging, according to the commercial understanding of the phrase, signified any fabric, without regard to the material of which it was made, that was used to bale or cover cotton, and prayed the court so to charge the jury.

His. honour the jud¿e refused so to charge the jury; but, on the contrary thereof, charged that the point upon which this case turns is for the decision of the ' jury, viz.: whether the article in question in this case was known as cotton bagging in the year 1832, when the. tariff act was passed. It has long been a settled rule of construction of revenue laws,- imposing duties on articles of a specified denomination, to' construe' the article according to the designation of such article, as understood and known in commerce, and not with reference to the materials of which they may be made, or the use to which they might be applied.. Nor ought such laws to be construed as embracing all articles which might subsequently be applied to the same use and purpose as the specific article. If it had been the intention- of Congress to impose the duty upon all articles'used for bagging cotton, the language of the. act would have been different, and in terms prospective, adapted , to such purpose. It has been argued, on the part,.of the United States, that the duty was .intended to be. laid on all articles used for bagging cotton, because-the duty is laid on option bagging “without regard to weight or measure.”1 These terms, “ weight or measure,” were intended to. apply to different materials then in úse for bagging cotton, such as hemp, flax, and sometimes cotton cloth, &c., and not to any new articles that might thereafter be applied to that use. .So that the whole question of met for the jury is whether gunny cloth was, , in commercial understanding, known as cotton bagging when the law was passed laying the duty,, in Í832?. If it was not, they will, find for the plaintiff's; if it was, they will And for the defendant.

To this charge, in every respect, thedefendant’s- counsel excepted.

' The jury, found a verdict for the plaintiffs for $4543 IT, and six cents costs.

The question brought up by this exception cannot now be considered as an open one. In the case of the United States v. 200 chests of tea, 9 Wheat. 438, the court decided that in imposing duties Congress must be understood as describing the article upon which the duty is imposed according to. the commercial understanding of the terms used in the law, in our own markets. This doctrine was re-affirmed in the case of the United States v. 112 casks of sugar, 8 Peters, 277, and again in 10 Peters, 151, in the case of Elliott v. Swartwout. It follows that the duty upon cotton bagging must be considered as imposed upon those articles only which were known and understpod as such in commerce in the year 1832, when the law was passed'imposing the duty.

In the cáse before us, the Circuit Court followed the rule of construction aboye stated, arid it has béen followed also in every circuit where the question has arisen. The judgment is therefore affirmed.


text:
    Samuel Swartwout, Plaintiff in error, v. John Gihon et al.
    When ’ an importer tneans to contest the payment of duties, it is not necessary-for him to give a written notice thereof to the collector.
    The question of notice is-a fact for the jury, and it makes no difference, far the purposes for which it is required, whether it is written or verbal.
    .The facts in this case are sufficiently set forth; in the following opinion.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case comes before the court upon a writ of érror directed to the Circuit Court for the southern district of New York. _ The action was brought by the defendants ijx error against the plaintiff to recover back certain sums of money paid to him as duties on brown linens, imported into New York in 1.836, of which port he was at that time the collector. Some of these duties were paid under protest in writing, and some without any written protest or notice, but evidence was offered for the purpose of (showing thalthe defendants in error verbally -notifie_d the collector- that the duties charged on all of these goods would be contested. The goods in question- were unbleached linens, and ha'd been charged.with duty as-coloured; and the jury found a verdict against the.colljéctor for the amount claimed.

At the trial, the court instructed the jury that a written notice,Of •the objections to pay the- duties was not necessary, and that it was sufficient if a verbal notice was brought home to the collector; but that the jury-must be. satisfied that such notice was brought home to him; To .this direction the plaintiff in error /excepted; and it is upon this point only that the case comes before this .court.

The only, object of the notice’ was to warn the collector that the party meant, to hold him personally responsible for the -money, whether he paid it over or not. It was. a question for the. jury to decide whether notice was or was not given; -and.it could make no difference, for the purposes for-which it 'was .requited, whether it was ■written or verbal.- We think the charge óf the court -was clearly right, and the judginent is therefore- affirmed.


text:
    Lessee of Henry Waller, Assignee of the bankrupt estate of Francis A. Savage, Plaintiff, v. James and Joseph Best.
    In Kentucky, the creditor obtains a lien upon the property of his debtor by the delivery of a.fi.fa. to the sheriff; and this lien is as absolute before the levy as it is afterwards.
    Therefore, a.creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor committed .before the levy is made, but. after the execution is in the hands of the sheriff. -
    This case came up from the Circuit Court of the United States for the district of Kentucky, on a certificate of division in opinion between the judges thereof.
    The'following is the entire record in the case:—
    “The following statement of questions and points of awwhich arose in this case, and the adjournment thereof into the Supreme Court of the United States for decision, was ordered to be entered, to wit:
    “ Savage had the title to the land; the plaintiff claimed under the • decreé of his bankruptcy; the defendant, under a sherifPs sale under an execution. •
    “The act .of bankruptcy of savage was committed on the 27th April, 1842; the petition of his creditors was filed against him in the 'District Court on the 25th day of June, 1842, and he was declared a bankrupt on the 26th of October, 1842;. the plaintiff was appointed the assignee,1 and this is his title.
    “An execution of fieri facias on a-judgment against the estate of Savágé was delivered to the sheriff on the 9th of April, 1842, before the afct of bankruptcy; .and was levied on the land on the day of before the petition; but after the act-of bankruptcy the
    defendant purchased at the sheriff’s sale, had his deed,- and this was his title.
    “ The question was, has the plaintiff, by the decree of bankruptcy' and its relation back to the act of bankruptcy, the elder and better title j- ór has the "defendant, by the prior delivery of the execution into the hands of the sheriff, and his levy of it before the petition was filed, the prior and superior title? .
    '“On this question the judges were divided and opposed in opinion; -whereupon; on motion of the counsel of the plaintiff, the question is' stated and ordered to be certified to the Supreme Court for decision.”

      Morehead and B. Monroe, for the plaintiff.

      ■Rickard French, for the defendants;
    The argument on behalf of the plaintiff was this:
    Two questions arise: 1st. Did Best, the tenant in possession and the plaintiff in the execution under which the sale of the land was made, acquire any lien, such' as is recognised by the latter proviso of the 2d section of the bankrupt law, before the execution was in fact levied ? '
    •. 2d. If any. such was acquired, is it effectual against the- rights of the assignee .of the bankrupt, when the act of bankruptcy was committed,before the levy of the execution; or could the execution, in virtue of the' lien given by the state law, which was in the hands of a sheriff, but not levied before an act of bankruptcy, be afterwards levied, and the property sold?
    These questions render it necessary to look to, the character, of the lien given by the statutes of Kentucky, in favour of execution ere- . ditors, and when that lien commences. The statute of Kentucky (1 Stat.Law, 636) provides “that no writ of fieri facias, or other writ of execution; shall bind the estate of the defendant or -defendants but from the time such writ shall be delivered to the sheriff or other proper officer to be executed.” What is the import of the term bind, as' -used in the statute.? That it has some- binding effect is evident, but to what extent? Is it a lien within, the meaning of-the proviso of the,bankrupt law? It is insisted-that.it.is not, but is' only so,far binding as to prevent such disposition of the property by the defendant as mil-defeat the execution so. in "the hands of the of-freer;. and does not so far bind the property as to prevent other execution creditors from levying their executions upon the debtor’s properly. See Tabb.ru. Harris, 4 Bibb,- 229“ and Kelby u. Haggin, . 2 J, J. Marshall, 212. In the latter case the court use this language: “The .only object of attaching a lien to an execution is to prevent the debtor, from defeating the creditor by alienating or embarrassing his estate. ’ The reason of the- lien, in such a case, does not apply, to competition between creditors-, and cessante ratiom cessat lex¡, moreover, it'is but sheer justice to give the preference to the creditor who by his superior' industry and vigilance shall have^ procured the • first levy on the debtor’s estate.’’ -This interpretation of the statute •shows what is the character of that binding spoken.of in the statute, and that' it does not amount to ¡the lien referred to in the bankrupt law until the execution be in fact levied, when it may. be admitted that it amounts to such lien. ’
    2d.- The proceedings against Savage was at the. instance of a creditor. The apt of bankruptcy complained of was committed, before any levy of the execution, though the filing of the petition and the decree were subsequent to the levy of the execution of Best. At common l.aw a fieri facias had relation to its teste, but by our statute only from the day of its delivery to the officer. According to the adjudications of the English courts,. on thé bankrupt' laws of that .country anterior to the 36 George 3 and the 6^ George 4, the urti-form and well settled doctrine was that the assignee had a right to overhaul all the transactions of the bankrupt subsequent to the first act of bankruptcy, and recover all moneys or. property which passed through his hands; but by the 18th section of the 6 George 4, all bond fide transactions entered into more than two calendar months before the date and issuing, the commission against the bankrupt, and ■ aQ executions and attachments against his lands or chattels bond fide executed' of levied more than two calendar months before the issuing of thé commissions,” are made valid,“notwithstanding any prior act óf bankruptcy, provided the parties had no notice of it.”
    Our bankrupt law has this proviso in the 2d section (1st proviso): “That all dealings and transactions by and with the bankrupt, bond fide made and entered into more than two months before the petition. filed against him or-by him, shall not be invalidatedby this-act, provided that the other party .to any such, dealings or transactions had no notice of aprior act of bankruptcy, c»i of the intention of the bankrupt to take the benefit of this act.”
    These provisoes havé no bearing' uppn -the questions involved. No reference is here made to any executions' or 'attachments, as in the English statute, but they, are left to be governed by the last proviso óf me 2d section.
    The binding effect of writs of fieri facias in England, by the common law, was from the teste; by .the-statutes of Kentucky it is from the delivery to the sheriff: but in the character of this binding effect there is believed to be no other distinction but in respect of the time of its commencement. It miay-be proper then1 to learn whát, was the course of adjudication by the English courts upon this question, In Cooper v. Chitty, 2.W. Black. 65, 1 Burr. 20, it is said if a sheriff take goods of a bankrupt in execution after the act of bankruptcy and before commission issued, and sell them after the commission, trover will lie against him. ■
    Again,- the sheriff seized the goods of a defendant under & fieri facias, and sold and delivered them to the judgment creditor, in satisfaction of the debt, after a secret qct of bankruptcy committed by the defendant, but before the issuing, of'a commission against him: held, that the seizure and'sale of the goods was a wrongful conversion, for which the sheriff was hable in an action of trover at the. suit of the assignee subsequently chosen. Balme h. Hutton, 3 M. & Scott, 1, 9 Bingh. 471, 1 C. & M. $62; reversing S. C. Tyr. 17, 2 C. &.JÍ. 1.9, ü Y. & J. 101, held by seven judges K. B. and C. P.. (Gaselie, J., dissentient.); Price v. Jlelyar, 1 Bingh. 597, 1 M. & P. 541; S. P. Porter v. Starkie,.l Mi & S. 26Ó; Blogg v. Phillips, 2 Camp. 129.
    Farther, in Lazarus v. Waithman, 5 Moore, 313, where a tradir committed an. act of bankruptcy on the 9th November, and the sheriff tqok hjs goods in execution on .the 15th November,, and sold them on the 21st December, and a commission issued on the 23d, and an assignment made on the 6th January following, it was held, “ thát the assignee might maintain trover against the sheriff,” although he had sold before the assignment was made, as the bankrupt’s property vested in him by such assignment from the act of bankruptcy by relation.
    . These authorities are deemed sufficient to. show that the binding effect of an execution from its date, in England, was not such as to give the execution- creditor any lien or preference over other creditors, unless the execution was in • fact levied before the act .of bankruptcy; and if not levied, the decree in bankruptcy, by relation, reached back, and effectually passed all .the rights of the bankrupt to the assignee, as they existed at the time ¡of the‘commission of the act of bankruptcy. And there is believed to be nothing in oiir bankrupt law which. requires that it should receive a different interpretation from the English, statutes in this particular. The action of some creditor .was necessary to bring about the decree in bankruptcy; it is, therefore, the effort of the creditor, not of the defendant in the execution, which brings about the decree. The. investiture of the rights of the debtor in the assignee is the act of the law, and the effect of the action oí one or more creditors, for his o.wn benefit and that of other creditors; and the result of this conclusion is, that there is a pro rata, distribution of the bankrupt’s property, rather tharr the appropriation of the whole to a single creditor.
    Is die placing the execution in the hands- of the- sheriff a dealing by and.with the bankrupt, to-which the first proviso in-the 2d section-has referenced It is insisted that it is not. The bankrupt has, in that matter, been passive entirely. • There has been no act upon his part, which is to acquire -sanctity by the lapse of sixty- days, spoken of.in this proviso.- But in this case sixty days had not elapsed; therefore, this proviso is altogether inoperative,
    Although when an execution is levied, and a sale made, the title of the purchaser reaches back, and is protected from any effort of the debtor to pass die title of the property, yet it is not so when two executions are out against the same- defendant, in the hands of different officersH-that which- is -first levied will hold, though it be youngest in date; and a levy and sale under that which was first in the hands of-the' officer,,-but last levied, will be ineffectual to pass any title'to the-purchaser., -This is the law, as understood .by the counsel, in contests between execution creditors in Kentucky; and it is insisted that the case-of a’peiitioning creditor in-bankruptcy is analogous to that of an execution creditor, and that the filing of the petition by a creditor is' tantamount to the levy of an execution: -it is a proceeding by -which a lien is acquired by the assignee, - for the benefit of the general' creditors, -and .will oust any su.ch inchoate lien as-that relied on as'arising from an execution not in fact levied.
    The assignee had his election to sue the sheriff or to -sue the purchaser of the land; and having elected to sue the purchaser of the land, who was .the plaintiff in die. execution levied -thereon, and having shewn title and right of-possession, the judgment should be for the assignee, for thé possession of the land.

      French, for defendants. '
    The question on which the courtibelow divided was, whether the title acquired by purchase under an execution which , came to the hands of the sheriff before the act of bankruptcy, and was levied after the act of bankruptcy, but before filing of petition in bankruptcy, related back to thé time the execution came to the hands of the sheriff, and overreached the title of the assignee-in bankruptcy; or, was the title óf thé assignee the better title?
    The defendants rely on the last proriso in the 2d section of the bankrupt law, which protects “ any Hens, mortgages, or other securities'on property, real or personal,, which may be valid by the laws of the states respectively.”'
    That an execution, delivered ..to- thé propér officer, constitutes a lien on- defendants’ property, and that title acquired by purchase under- such execution relates back to the time'Of delivery, is a.proposition most clearly settled hy judicial decision .irf Kentucky, in Million v. Riley, 1 Dana, 359, execution was delivered to sheriff, June 16th, and'was levied August 5th. On the intermediate July 22d, defendant sold and conveyed. Held, that execution ac'quired a Hen from June 16th, and that purchaser’s title related back to that time. He recovered, therefore, in ejectment against the vendee of execution debtor.
    In Clagett v. Force, 1 Dana, 428, after- execution delivered,- defendant removed a horse to Indiana, and sold him there. The purchaser brought the horse to Kentucky, where he was levied on by-the-same execution, delivered-as-aforesaid.- Held, that the Hen \vas' not lost by the removal to Indiana, and sale there; and, therefore, that the horse was subject to the execution.
    Orchard v. Williamson, '.6 . J. J. Marshall, 561; after execution delivered, defendant swapped á horse for another. Both were levied on: and held, that both were subject, one by virtue-of thé lien, and-the other as the property of defendant.
    Addison, &c., v. Crow, 5. Dana, 274; levying an execution has the effect of rendering the lien more specific, and’of-continuing the Hen and-authority of the sheriff; further than-this, it had no greater efficacy than placing the execution in the hands of the sheriff. Néither the delivery nor the levy divests the défendant of title: hé may sell and pass the title, still the execution is a Hen or charge on the land, and when completed by sale, the title relates back to the delivery, and overreaches all-intermediate conveyances.
    Hood, &c.., v. Winsátt, 1 B. Monroe: after execution delivered, property was removed to another county. The execution was returned on the return day, and another one issued to the county to which the property had been removed, and was placed in the hands of the sheriff of that county the same day. Held, that the Hen was continued from the delivery of the original execution.
    Having referred to a few of the Kentucky cases, which hold, without the shadow of doubt, that an execution delivered acquires a lien, I shall notice some of the decisions in which the above recited proviso ofthe 2d section of the batikruut law is broupht under review.
    The 1eadin~ case is that of Ex p~irtè Foster, 5 Law Reports, 55.
    The questiôn judicially decided in. this case was, that by the laws of Mass~chusettsa party proceeding by attichment did nol~-acquirea lien on the attached property until judgthe~t, and that a petitioner in bankruptcycould enjoin proceedings on the attachment, until it was ascertained whether tbe bankrupt obtained his certifiqate. if he did,. be could plead the certificate in bar of the attachments, and thus defeat the inchoate lien. -~ -. -
    The profession however, understood the case difi~rent1y, and supposed the of it would be to `cut 363. J.ne proiession ~eneraIIy, nowever,unaerstouu me case arnerenny, and supposed the effect of it would be to `cut ~ff all judgment liens, execution liens, even though levied, venddrs' liens, &c., from all benefit under the proviso above- referred to. This case, thus under- stood, was rehed on as nuthority belOre other judges~ aii~t first beibre Judge Conkling,
    of New. York, in the case, in the matter of Allen and others, 5 Law Reports, 363. In this case judgment. creditors had attached in action. The court sustained the lien acquired by the evidently inclining to broader def~.nitioii of the liens embraced by the proviso in question thai was given in J~x phite Fo~ter.. Th~ next case is Downer and others v. Bracket, ground. In Haughton v. Eustiôe, 5 Law Reports, 505.; Judge Thompson, of Vermont, decid~cl that an attachment lien was protected by the proviso in -question. Ho expressed~the opinion that judgment liens, an4 such similar liens, were protected. That the case of Foster was greatly misapprehended is evident from the subsequent decisions of Judge Story. - - - - - Ihus, in the case 01 k'arlcer antt Jilalichard, plaintiffs, in matter of Muggridge, &c.,
    5 Law Reports, .351, after judgment, Judge Story maintained the lien by attachment; because, after judgment, there could b~ no: day in court-to plead the discharge. He also expressed the opini~m that judgment liens were protected by the. proviso in question. - .. - - - In the t~se, `I'he znattef of Uook, ö Law Reports, 443 Judge
    Story expressed surprise that the case of Foster had been so much
    misun- derstood, and in this latter case sustains the lien of the attaching cre- ditors, who had obtained judg~nent, declaring that this lien was equl- plead the discharge. He also expressed the opini~m that judgment liens were protected by the. proviso in question.... - .. - � -
    In the t~se `I'he znattef of Uook � Law Reports 443 Judge Story expressed surprise that the case of Foster had been so much misun derstood and in this latter case sustains the lien of the attaching cre ditors who had obtained judg~nent declaring that this lien was equl valent to the' common , law. judgment lien, adding, that he never doubted that that ,lien was. rotected. ’

    All the judges, then, fq Vínose opinions I have referred-, concede that judgment liens are protected ; and Judgfe Prentiss places judgment.liens and exeeuüons issued on the same footing,1
    Iwill endeavour, further, to show that the lien of execution issued is fully equivalent to . the judgment lien.-
    Land by the common law, as it originally stood,, was not, except under some peculiar circumstances, subjeét to the debts of the owner. 2 Bac. Abr."tit. Execution, A, 685;.' 3 Black. 418.
    The judgment lien On lknd arises from the construction, of the statute of Edward 1, chap, i‘8, commoxdy called the statute of Westminster. See,Ex parte Foster, 5 Law Reports, 63, 67.
    - It was by this statute the eligit was given? by virtue of which the judgment creditor has his election to take a fieri fiadas-tor the.sale of -goods and chattels; or the eligit-to extend the goods and chattels and one-half the land.. See 2 Bac. Abr. tit. Execution, A, .686; 3 Black'. 418.
    This statute does not expressly give any lien, but only authorizes the'creditor, at his election, to. sue out the; eligit directed to the sheriff, and the command of the writ as prescribed is, that the sheriff shall levy the debt of the goods and chattels, and one-half the land. See form of 2 Bac. Abr. tit. 7101
    It is .by construction of this' statute, the writ relates hack, to 1he judgment, and overreaches all intermediate encumbrances;
    In like manner, at common law, the fieri fackts, which commanded the sheriff to levy the .debt of the goods and chattels, related back to its teste, and bound from that time.. ■ 2 Bac. Abr. tit. Execution, I, 733; as judgments' did from time of same 731,
    By 29th Charles 2, ther statute of frauds, (the same from which the Kentucky statute is copied,) executions-bnly bird from the time, áre delivered. 2 Bac. Abr. tit. 733.
    • Judgments docketed, and executions delivered, are evidently, in Bacon, at the pages cited, (731, 733,) placed on the- same, footing.
    They seem to be placed on the samé footing in the case of Foster, 5 LawRéports, 63, 67.
    There are some Other striking analogies between judgments and executions issued, which Ijwill notice.
    An execution, as. conceded, does not vest a title until executed, neither does a judgment. Ex parte Foster, 5 Law Reports, 64. Covenant of seisin is not broken by outstanding judgment. Sedgwick v. Hollenback, 7 Johns. 380.
    As between execution plaintiffs, he that by superior diligence acquires the first levy is preferred; so between judgments of the same date, he that first sues execution- and. sells; acquires a preference. Adams t>. Dyer, 8 Johns. 350; Watterman, &c., v. Haskins, 11 Joljiis. 230. *

      Salé under .junior execution, if first levied, would be valid; so is sale under junior judgment. Sanford v. Roosa, 12 Johns. 162.
    To conclude, then, the title of the assignee can only relate back to . the act of bankruptcy. The tiñe of the defendants, as we have seen by the cases of Million v. Riley, 1 Dana, 859, and Addison, &c., v. Crow* 5 Dana, 274, relates back to the time the execution was delivered to the sheriff. . This period being anterior to the act of bank- ' ruptcy, the tiñe of the defendants is older than that of the plaintiff.
    2d. All the authorities concurring in the opinion, that judgment liens are protected by the proviso- in the 2d section, and the. analogies between the judgment lien and execution issued being so striking, .1 would respectfully maintain, that the tiñe of the defendants is also protected by tire- proviso referred to;
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case comes before the court upon a certificate of division between the judges of the Circuit Court of the United States for the ‘district of Kentucky, upon the following statement:—

“Savage had the title to the land; the plaintiff claimed under-the decree of his bankruptcy; the defendant, under a sheriff’s sale under an execution.

“The act of bankruptcy of Savage was committed on the 27th April, 1842; the petition of his creditors was filed against him. in the district court on the 25th day of June, 1842, and he was declared a bankrupt, on the 26th October, 1842; the plaintiff was appointed the assignee, and1 this is his title.

“An execution of fierifacias on a judgment against the estate of Savage was delivered to the sheriff on the 9th April, 1842, before the act of bánkruptcy, and was levied on the land on the day of before the petition; but after the act of bankruptcy the defendant' purchased at the sheriff’s sale, had his deed, and this was his title.

{ i The question was, has the plaintiff; by the decree of bankruptcy and its relation back to the act of bankruptcy, the elder and better title; or has the defendant,'by the prior delivery of the execution into the hands of the sheriff, and his levy of it, before the 'peiition was filed, the' prior' and superior tiñe ?”

The statute of Kentucky, upon this subject, provides “ that no writ offieri facias, or" other writ-of execution, shall bind the estate of the defendant or defendants but from the time such writ shall be delivered to the sheriff, pr other proper officer, to be executed-.” According to the laws -of that state a judgment is not a lien upon land, and the real as well as-persorial estate is not bound until the process of execution against the property of the defendant is-delivered to the officer. .The question to' be determined is, whether the delivery of the fieri facias' to the sheriff tq be»execütéd created a lien on the property of the defendant, for this ámount for which the execution was issued? If it did, the title of the defendant is tbe superior and'better title, and protected by the' last proviso in the 2d section of. the act to establish a uniform system of bankruptcy throughout the United States.

In construing the statute above mentioned, the decisions of. the courts of Kentucky have not been entirely uniform. In the case of Tabb v. Harris, 4 Bibb, 29, decided in Í8Í6, it was held, that the delivery to the sheriff created no lien on the property of the defendant. In a subsequent case, however, in the same volume, Daniel v. Cochrane’s administrator, 4 Bibb, 532, decided in 1817, the court, in delivering their opinion, speak of the lien of a fieri facias, from the time it was delivered to the sheriff to be executed, as if it were a known and settled principle of law in that state. But this'was not the main point in that case, which turned upon-the question, whether the ¿xecution continued to bind the property of the. debtor until' the judgment was satisfied. The court held that it did not, .and that the lien ceased-after the return day of the execution, if it was not levied before. The question,- as to.the lien acquired by the delivery to the-•officer, again arose in the case of Kilby v. Haggin, 3 J. J. Marshall, 208, and. in this case, which was decided in 1830, the doctrine in the case of Tabb v. Harris was fully sustained; and it was directly and distinctly decided, that the delivery to the sheriff created no -lien against any other creditor, and that an execution afterwards placed in the hands of the sheriff, if first levied upon the property, was entitled to a preference.

But in die case of Million v. Ryley, 1 Dana, 360, decided in. 1833, the court held, that the plaintiff obtained a lien by the delivery to the sheriff, and that the title acquired by the purchaser, when the execution was regularly levied and the property sold, related back to the delivery"to the officer; and they speak of this lien as secured to the creditor-by the Kentucky statute. In 1837 this subject again came' before the court, in the case of Addison and others v. Crow and others, 5 Dana, 274, and in this case the question appears to have been very fully considered, and the case of Million v. Ryley was referred to and commented on, and the principle decided, in it in relation to the* lien of an execution re-affirmed. In this case the court say “ the levy of a fien facias up op the land of the debtor undoubtedly renders the.lien "more specific, and being a necessary step in the execution of a writ, completes the authority, of the officer to sell, and has the further effect of giving continuance both to the authority ánd the lien, which would otherwise expire with the return' of the writ. And we. do not perceive any necessity .or reasonable ground for .ascribing to it any other efficacy than thisand in page 277. of the same case, the court again say, “ no reason appears foi attributing'to "a levy any efficacy except'as one step towards the consummation of the lien arising from the delivery of the execution to the officer.”

. This is the latest de asion in the courts of the state-to which we have been referred, 01 of which we are- aware, and, as we have already- said, it appears, to have been well considered. And whatever doubts might before have, been entertained, we must, under the au-. thority of this casé, .regard it as the settled law of the state, that the creditor obtains a lien-upon the property-of his debtor by the delivery of the Jim facias to the sheriff; that it acquires no additional validity or force by being actually levied, bút that the lien is as absolute before the levy as it is afterwards, and continues .while the procéss. remains in. the hands of the sheriff to be executed.

In this view of the subject- it is unnecessary to examine or to remark upon the.-cases which have been decided in. other states or in England, because the question depends altogether upon the. law of Kentucky. And as by the laws of that state a.Jieri facias, when delivered to the sheriff, is a lien upon the property of the debtor while it continues , in the hands of the oflicer to be executed, the' creditor is not deprived of this lien by an' act of bankruptcy on the part of'the debtor committed before the levy is made, but after the execution is in the hahds.of the sheriff. .In the case before us, therefore,the. court are of-opinion that the defendant, by the prior delivery of the execution and the subsequent levy and sale, has the priof and superior title, axyl we. shall certify accordingly to the Circuit Court.