author: Mr. Chief-Justice TANEY

text:
    William M. Gwinn, Marshal, Plaintiff in error, v. Buchanan, Hagan, & Co., for the use of William Holliday & Co.
    A plaintiff has a right to direct a deputy-marshal to receive a certain description of money in satisfaction of an execution.
    But the deputy-marshal then acts as agent of the plaintiff, and not as agent of. the marshal.
    If, therefore, the plaintiff, when he does this, gives to the deputy-marshal other instructions, which are disobeyed, the marshal himself is not responsible, but the plaintiff must look to the deputy.
    This case was brought up, by writ óf error, from the Circuit Court of the United States for the. District of Mississippi.
    A judgment was obtained in that, court, at May tern', 1839, by the. defendants in error agáinst Ephraim Gwinn and Jemes Ballance, for the sum of $ 2,679*88, with interest at the rate of eight per cent., from the 27th of May, 1839, until paid, and costs.
    An execution was sued out upon this judgment on the 28th of June, 1839, and property ,of the defendants levied upon to the amount due on the execution, which property was suffered to remain in their possession, according to a law of that State, upon'5 their executing a forthcoming bond with sufficient security. This bond was returned by William M. Gwinn, the marshal, at the next term (November term, 1839), “ forfeited,” whereby the said bond, according to the laws of Mississippi, had the force and effect of a judgment against the defendants in the original judgment, and their securities in the said bond.
    Upon this last mentioned judgment, another ji./a. was issued on the 19th of- December, 1839, returnable to the next term of the court, to be held on the first Monday of May, 1840. ThisJE./a. came to the hands of -the marshal (the plaintiff in errór), and Was placed by him in the hands of T. M. Ferguson, one of his deputies, to be executed. At; the May tern), the following return was made : — '
    44 Satisfied in full on the third day of April, 1840.
    “ .W. M. Gwinn, Marshal,
    . per T. M. Ferguson, D. Marshal.’-’
    The money was thereupon demanded of. the marshal by the attorney for the plaintiffs (who áre the present defendants in error), and upon this demand the marshal tendered to him the amount in the following funds — A Treasury Note of the United States for one thousand dollars, and the balance in post notes of the Mississippi Union Bank, due in May and April, 1840, with fifteen per cent, added for exchange. These funds were refused by the plaintiffs’ attorney, who thereupon moved the court for. a judgment against W- M Gwinn, the marshal, for the amount due on the said execut on, upon the ground that the money had been collected by the marshal and not paid over on demand.
    It appeared, on the hearing of the motion, that the following letter had been addressed by the plaintiffs’ attorney,to Ferguson,, the deputy-unarshal, while the execution was.in his hands.

      .lt March .23d, 1840.
    44 Dear Sir In the case of Buchanan, Hagan, & Co., use of Wm. Holliday & Co., vs. Gwinn & Ballanee, we are authorized to receive one thousand dollars in United States Treasury Notes, and the balance in post of the Union Bank, maturing May and April, 1840, adding on the post notes fifteen per cent, for exchange. This was what Mr. Gwinn proposed to us, and the plaintiff directs us to accede to the proposition, provided the payment be made tó us without delay, in order that the funds may be remitted before any further depreciation shall occur. You will please communicate this to the parties at the earliest moment.
    “ Very respectfully,
    44 Your ob’t servants,
    ' 44 Harrison -& Holt.”
    I appeared, also, that the money had been collected by the deputy marshal on the 3d of April, 1840, in the funds mentioned in the said letter, and tendered, to the attorney at May term, 1840, when he made the demand. above. mentioned ; that the deputy-marshal did not notify the. plaintiffs, or their attorney, of thereceipt of the money, and that no demand for it was made previous to the term at which- the execution was returnable, before which time the bank-notes had suddenly and greatly depreciated ; and that. Gwinn, the marshal, knew nothing of the instructions given by the plaintiffs? attorney, nor of the collection of the money, until the meeting of the court.
    Upon this evidence, the Circuit. Court gave judgment against William M. Gwinn, the marshal, for the amount of the debt, interest, and costs due upon the judgment of the forthcoming bond. An exception was taken to this opinion of the court, and the present writ of error brought by the márshal upon , this judgment against him.
    The case was argued by the Attorney-general, for the plaintff in error.. No counsel appeared for the defendants.
   Mr. Chief-Justice TANEY

delivered the opinion of the court.

As .a general principle, it is undoubtedly true, that the marshal is responsible fcr the acts of his deputy in the execution of process ; and if the deputy had taken the funds mentioned in .the testimony without any orders from the . plaintiffs, or their attorney, ancbretUrned the execution satisfied, tne plaintiffs would not have been bound to accept these, funds in discharge of their judgment, and might have insisted on the full amount from the marshal in gold and silver.

But it is clear, that the plaintiffs had a right to accept in payment of their execution whatever they thought proper. The deputy-marshal was bound to obey their directions-upon that subject ;'and neither the deputy nor the marshal can be held responsible to the plaintiffs for any loss they may sustain by reason of an act done in pursuance of their own instructions.

But the plaintiffs seem to suppose that the authority given to the deputy was not pursued, and that the payment of the money to them without delay was a condition annexed to the authority, which had been disregarded by the deputy. But however tins may be, as between him and the plaintiffs, the act or omission of the deputy in that respect cannot make the marshal himself liable. Gwinn knew nothing of the directions given by the plaintiffs’ attorney. So far as Ferguson was acting as deputy-marshal, he had no right to receive, in payment of the debt, any thing but gold and silver. He had no authority from the marshal to take any thing else. But when the plaintiffs interfered, and directed him to receive the funds above mentioned, he was, in receiving such funds, not acting under the authority of the marshal as his deputy, but as agent of the plaintiffs; . And if, in executing the power they gave him, he disobeyed their instructions, they must look to him, and not to the marshal, who knew nothing of these instructions, had no concern with them, and who cannot, therefore, upon principles of law or equity, be held responsible for the manner in which they were executed.

The judgment of the Circuit Court must, therefore, be reversed; with costs.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    James Brown, Plaintiff in error, v. John Clarke, Defendant.
    By the law of -Mississippi, a judgment is a lien upon personal as well as real estate -from the time of its rendition.
    Where there has been a judgment, an execution levied upon personal property, and a forthcoming bond, the property levied upon is released by the bond, and the lien of the judgment destroyed.
    If, therefore, after this, another judgment be entered against the original defendant, this second judgment is a lien upon the property which has been released by the bond.
    The lien thus acquired by the' Second' judgment is not destroyed by subsequently . quashing the forthcoming bond. The effect of such quashing is not to revive the first judgment, and thus restore the lien which was superseded by the execution of the bond.
    If the forthcoming bond had been shown to have been void ah initio, the result would be different.
    In cases of conflicting executions issued out of the federal and state courts, a priority is given to that under which there is an actual seizure of the property first. The mode in which bills of exceptions ought to be taken,- as explained in Walton v. The United. States (9 Wheat. 651), and in 4 Peters, 102, will be strictly ad- ■ hered to by .ihis court.
    This was a writ of error to the District Court of the United Státes for the Northern District of Mississippi, to bring up for review certain instructions delivered to the jury in an action of trover, brought, by the. defendant in error against the plaintiff in error, and in which the plaintiff below obtained the verdict.
    The case was this. Brown, the defendant below, obtained a judgment of $ 8,640-37, by confession, against one Haywood Cozart, in the Circuit Court of Lafayette County, Mississippi, which was docketed on the 18th of May, 1840. Upon which execution was issued on the 6th, and delivered to the sheriff on the 20th of June following, and a levy made the same day on several slaves, the property of the defendant on the execution. A forthcoming bond was given by the defendant, with H. M, Cozart as surety, and which was approved of by Brown, the plaintiff.
    This bond is in the penalty of double tbe amount of the judgment, piade payable to the plaintiff in the execution, and conditioned wed and truly to deliver the property levied on to the sheriff on the 17th of August (then) next, the day of sale, at a certain place, to be sold to satisfy the judgment, unless the same should be previously paid.
    Clarke, the defendant in error, recovered a judgment of ‡ 2,117'31 against the same Haywood Cozart, in the District Court of the United States for the Northern District of Mississippi at the June term of said court, 1840 ; upon which an execution was issued to the marshal of the. district, and a levy made, - on the 9tb of November following, upon six of the slaves in the possession of Cozart, and which had been before levied on under Brown’s execution. They were -sold by the marshal on the 7th December' thereafter, and purchased in by Clarke, the plaintiff, the highest bidder. . . •

      . The sheriff returned upon the execution in the case of Brown v. Cozart, and upon the forthcoming bond, that the property was not delivered in pursuance of the condition, nor the money paid ; and that it wag therefore forfeited. And Brown, at the November term of the Circuit Court of Lafayette County, at which the execution was returnable, made a motion to the court to quash the bond, which was granted accordingly ; the ground of the motion is not stated. And on the same day, the 23d of November, 1840, he sued out an alias fieri facias on the original judgment, returnable at the next term of said court.
    To this execution, the sheriff returned that he had levied upon six slaves, naming them, in the hands of the Marshal’of the Northern District of Mississippi, and also on other property which it is not material to notice. And further, that after the sale of the slaves by the marshal, he was indemnified by Brown, and required to make a levy-upon them on the 7th of December, 1840, and that, on the 4th of January following, he sold them, by virtue of’ the execution, to Brown, the highest bidder.
    It further appeared, that, at the time the marshal levied on the slaves, the 9th of November, 1840, Cozart had some fifteen or eighteen other slaves in his possession ; that the marshal took those levied on into his custody, and on the sale under the execution delivered them to Clarke, the purchaser ; and that they were afterwards taken out of his possession by the sheriff, under his execution, by the direction of Brown ; that Hiram M. Cozart, the surety in tire forthcoming bond, was a brother of Haywood Cozart, was a man of but little property, and lived with his brother, some six miles distant from Pvown ; and that after the levy by the marshal, and before the sale, the two Gozarts left the State of Mississippi for Texas, and carried away with them the fifteen or eighteen slaves not levied on by this officer.
    When the testimony closed, the counsel for the plaintiff, Clarke, requested the court to give the following instructions to the jury, namely : — That if they believed the marshal made lawful levy on the property in dispute, the sale under his execution was valid, and vested in the purchaser a good title against other executions, whether founded on judgments of the state or federal courts ; and that, if they believed that the sheriff levied his execution on the slaves and took a forthcoming bond, which was afterwards' forfeited, the same was a satisfaction of the original judgment, and the subsequent quashing of the same did not affect the rights of the plaintiff, acquired by virtue of the marshal’s levy after such forfeiture of the bond ; and also, if they believed that the sheriff, after his levy, took a forthcoming bond, which was afterwards forfeited, and that the slaves therein named remained in the possession of the defendant Cozart, the levy of the marshal, made after the forfeiture of said bond, and sale in pursuance thereof, were valid, notwithstanding the bond was quashed before the sale, but after the levy. And, further, if the jury believed, that the defendant, Brown, agreed to approve of the surety on the forthcoming bond, and thereby permitted the slaves to remain in the possession of the said Cozart, the subsequent quashing of the bond upon his own motion did not place him in any better situation than if he had not issued an execution on the judgment. And, also, if they believed the approval of .the bond; by Brown was with a view to allow Cozart to remain in possession of said slavés, and to keep off and delay other creditors, then they should find for the plaintiff; and, also, if they believed the. conduct of Brown was fraudulent in obtaining proceedings on his judgment, then they should find for the plaintiff. — All which instructions were. objected to by the defendant’s counsel; but the objection was overruled by the court, and the instructions given.
    The counsel for the defendant proposed the following instruc-. tions, namely : — That, if the jury believed, from the evidence, the defendant, Brown, obtained a prior judgment in the Circuit Court of Lafayette County to the judgment obtained by the plaintiff, Clarke, jn the District Court of the United States, Brown thereby obtained a prior lien upon Cozart’s property for the satisfaction of his judgment, and that said lien could only be defeated and postponed by some act of Brown fraudulent in law ; that the taking of the forthcoming bond by the sheriff, and the quashing of the same, were not acts deemed fraudulent in law ; that the levy and sale of the slaves of Cozart by the marshal, by virtue of an éxecution on a junior judgment, was- subject to the lien of the prior judgment, and communicated no title to the purchaser parar mount to the lien, of the prior judgment.; that the forfeiture of a forthcoming bond, which is quashed for want of conformity to the statute, is not such an one as has the force and effect of a judgment, because not in conformity to the statute. — Which instructions were objected to by the counsel for the plaintiff, and were refused by the court.
    The record adds, the jury returned a verdict for the plaintiff, and the defendant moved the court to set it aside, and grant a new trial, which motion was overruled. To all which the defendant, excepts, and tenders this his bill of exceptions, which he prays may be signed and sealed by thé court.
    The case was argued by Mr. Chalmers and Mr. Johnson, for the plaintiff in error, and Mr. Mason and Mr. Milton Brown, for die defendant; Of these arguments, the reporter has no notes except of Mr. Brown’s.

      Mr. Brown.

    John Clarke, the defendant in error, brought his action of trover against James Brown, the plaintiff, in error, for five slaves, in the District Court of the United States for the Northern District of Mississippi. At the December term, 1841, of said court, a verdict was rendered for $ 3,225, the value of the slaves, and judgment entered accordingly for the amount of the vierdict and costs. No exception appears of record to have been taken or filed to the opinion of the court during the progress of the trial. After the verdict and judgment, Brown, by his counsel, moved the court to set aside the verdict, and grant a new trial. The court, on argument, overruled the motion. The entry of this proceeding of record is as follows : —
    “ This day came the parties, by their attorneys, and then came on to be heard defendant’s motion for a new trial; and, after argument, as well in support of as against said motion, it is considered by the court that the same be overruled ; to which decision of the court overruling said motion, the defendant, by.attorney, excepts, and tenders his bill of exceptions, which is signed and sealed by the court, and ordered to be made part of the record in this cause.”
    On this alleged error of the court, in refusing to grant a new trial, this writ of error has been sued out. That the refusal ■ to grant a new trial is no ground for a writ of error is the well settled doctrine of. this cour,t. 3 Peters’s Dig. 106 Barr v. Gratz, 4 Wheat. 213, 4 Cond. Rep. 430 ; United States v. Daniel,. 6 Wheat. 542, 5 Cond. Rep. 170.
    What in this causé purports to be a bill of exceptions is founded on and follows the overruling the motion for a new trial, and was, as appears on its face, .drawn up and signed, not only after the trial, but after the motion for a new trial was disposed of. It c,ori- . tains nothing that can be reviewed by this court.. It contains a mere statement of facts givén in evidence, and the charge of the court to the jury, not made mattérs of record, but only retained in the memory of the judge, and recalled to regulate the discretion of the court in granting or refusing a new trial. Inglee v. Coolidge, 2 Wheat. 363.
    A bill of exceptions, to be the foundation of a writ of error, can . only be for matters excepted to at the trial, and must appear of record to have been actually 'reduced to form, and signed pending the trial ; and if, as in this case, it appear to have been drawn up and signed after verdict, it will be fatal. Walton v. The United States, 9 Wheat. 651 ; 5 Cond. Rep. 717. And although it may in some cases be the practice for the court to rote exceptions at the trial, and reduce thém to form and sign them afterwards, yet, in the language.of the court in the case of Walton v. The United States (above cited), “ In all such cases the bill of exceptions is signed nunc pro túne ; and it purports, on its face, to be the same' as if actually reduced to form and signed pending the trial. And it would be a fatal error if it were to appear otherwise ; for the original authority under which bills of exceptions are allowed has always been considered to be restricted to matters of exception taken pending the trial, and ascertained before verdict.”
    Even if exceptions had been taken at the trial and signed, the motion for a new trial would have been a waiver of them. Cunningham v. Bell, 5 Mason’s C. C. Rep. 161. In that case, Mr. Justice Story said : —“ The motion for a new trial cannot be entertained, according to the practice of the court, unless.the bill of exceptions is waived. The party has his election, either to proceed on the xyrit of error to the Supreme Court, in order to have it determined there whether the points were correctly ruled at the trial.; or, waiving, that remedy, to apply here for a new trial. But he cannot be permitted to proceed both ways.”
    It is believed that the authorities referred to show conclusively that the writ of error in this case cannot be sustained. But should the court-rule otherwise, and consider the matters contained In the bill of exceptions entitled to further examination, then the following statement of the case, in behalf of the defendant in error, is presented.
    Clarke, the defendant in error, brought a suit against one Haywood Cozart in the District Court of the United States for the •Northern District of Mississippi, and at the .June term, 1840, obtained a judgment. Cozart, xh May, 1840, during the pendency of Clarke’s suit, confessed a judgment for a large amount in the Circuit Court of Mississippi for Lafayette County, in favor of James Brown, the plaintiff in error. Executions, in due time, issued on both these judgments, and went into die hands of the proper officer of each court. Brown’s execution was levied by the sheriff on twenty-two sláves, and the sheriff took a forthcoming or delivery bond, with surety, from Cozart. The surety was approved by Brown himself. The bond required the delivery of the slaves in August, 1840. They were not deliyered, and the bond, under the statutes of Mississippi, was returned forfeited, having in itself the force of a judgment, and entirely extinguishing the original judgment.
    On the 9th of November, 1840, after this forfeiture of the delivery bond, the marshal levied Clarke’s- execution on five of the Slaves previously levied on by the sheriff, and sold them, — Clarke becoming the purchaser. On the 23d of November, 1840, Brown, by his own motion, procured the delivery bond from Cozart, taken on his own execution, and by his own express consent, to be quashed, with a view of reviving the lien of his original judgment, and overreaching that under which the sale of the five slaves to Clarke had been made. Brown then issued an alias fierifacias on his original judgment, and seized upon the five slaves purchased hy and in the possession of Clarke, and had them again sold, he himself, becoming the purchaser. Clarke brought his action of trover against Brown for the slaves taken out óf his possession, and .recovered judgment; to reverse which, this writ of error is sued out. .
    Was Clarke’s title to the slaves in question complete by .virtue of the sale to him by the marshal ? That the sale,was in all. things regular is not denied ; but it is contended that Brown’s judgment against Cozart, in May, 1*840,. gave him a prior lien on the property of Cozart," which overreached Clarke’s judgment in June, 1840.
    In Mississippi, by the act of 1824ra lien on all the property of -the defendant commences, with, the date of the judgment, Brown, therefore (aside from the circumstances under which his judgment was obtained), had a lien commencing with his judgment of May, 1840. ■ But this priority was lost, both by operation of law and his own act. An execution issued, a levy was made, and a forthcoming of delivery bond taken, which, in August, 1840, was forfeited. The bond, after forfeiture, at once, and without further action on it, has the force and effect of p judgment. The statute enacts, “ that any bond Which shall be forfeited shall have the force and effect of a judgment, and execution may issue thereon against all the obligors thereon.” How. & Hul. Dig. 653. By the uniform decisions of the Court of Appeals of Mississippi, under this statute, the forfeiture of a forthcoming bond creates a new judgment, in which the original judgment is. merged and extinguished. In an early case on the subject, this language is employed by the court: — “ The forthcoming bond, after forfeiture, becomes, by operation of law, a judgment; and as the law will not permit two judgments to exist at the same time against the same person for the same debt, this judgment, by operation of law, necessarily extinguishes the former.” Clark v. Anderson,
    2. How. Rep. 853. In a very recent case it is said, “ The original judgment, after the forfeiture of the bond, is no longer in existence.” Burns v. Stanton, -2 Sme. & Mar. 461. The lien of the first judgment ceases,-and a new and more comprehensive' lien arises upon this statutory judgment, embracing the property of both principal and sureties in the forthcoming bond. And no action of the court on the forfeited bond is necessary ; as soon as the bond is forfeited, the old judgment is extinguished, and a new lien attaches. Lancashire v. Minor, 4 How. Rep. 351 ; Lusk v. Ramsey, 3 Mun. 434.
    Brown’s original judgment, therefore, was extinguished, and his lien rested on his statutory judgment of August, 1840. This the law designed to be .ample, by requiring ample security.on the-bond. If it was * in fact not ample, it was because of Brown’s own act in directing the sheriff to take security, which he, without such directions, would not have taken, and which Brown knew was not responsible.
    In this posture of things, Clarke’s lien, under his judgment of June, 1840, took precedence, and was entitled to prior satisfaction. While thus clearly entitled to precedence and priority, Clarke’s execution was levied and the property sold, which Clarke purchased. Standing on this state of the case, it would be scarcely posssible to doubt Clarke’s complete title.
    But now comes a new point in the cause. Cozart, and his brother, who was irresponsible, but who had been taken as security in the bond by Brown’s directions, gathered what property they could, and both put out to Texas. Clarke, by his diligence, had saved the five slaves in question. It became important, therefore, for Brown to get clear of his new judgment, and get back to his old one. Accordingly, he moved the court to quash the delivery bond, which was done ; on what ground does not appear. And it is believed no good ground existed ; and that, if this new state of things had not arisen, no such motion would have been made.
    And now comes the question, what was the effect of quashing this bond. Its effect, as between the parties themselves, was to restore Brown to all his rights under his original judgment of May, 1840, without regard to his subsequent statutory judgment. But not so when the rights of third persons intervened. Clarke was no party to that proceeding, nor was he, or could he be, heard on the motion to quash the bond. Had he been a party, and been heard on the questiony.it is believed he could have successfully resisted the motion. His rights, therefore, cannot be affected by the proceeding. So far as his rights are concerned, they stand as though such motion had never been made or decided.
    If Clarke’s rights are to be affected, it can only he upon the doctrine of relation ; that the new judgment having been quashed, the old lien by .relation was revived, to operate from the rendition of the first judgment.. But it is a cardinal principle of the doctrine of relation, that it can never be extended to the prejudice of the rights of third persons. It leaves them as it finds them. Heath v. Ross, 12 Johns. 140 ; Jackson v. Bard, 4 Johns. 230. Then, although this proceeding restored Brown to his rights against Cozart, it cannot operate to divest the intermediate rights of Clarke, acquired without wrong on his part. This view does not, in the slightest degree, conflict with the cases of Andrews v. Doe, ex dem. Wilkes, 6 How. 554, and Commercial Bank of Manchester v. Coroner of Yazoo County, 6 How. 530. These cases relate to valid subsisting liens, not altered or áffécted by any circumstances subsequent to the rendition of the judgment.
    Brown’s priority of lien was not only lost by the extinguishment of his original judgment by the forfeiture of the forthcoming bond, but it was also lost by his own act. The lien of a judgment is a mere security, conferring no jus in rem, and which may be voluntarily abandoned, either expressly or hy implication; and when so abandoned, the property becomes freed from its influence, and subject to all the general incidents of other property.
    The sheriff, it would seem, on making the levy, was not willing to let Cozart retain the property upon the faith of the security offered. It was his duty, therefore, to take the property into possession until sufficient security, was offered. Brown, however, stepped forward, approved and accepted the suréty, which he knew to he insufficient, relying on Cozart’s good faith rather than on the forthcoming bond, and discharged the sheriff from the responsibility of taking insufficient security. By this act he placed it in the power of Cozart to do what he afterwards did do, — run his property out of the country, leaving his creditors to suffer.
    Brown, by voluntarily waiving his right to a good and sufficient surety to the forthcoming bond, and leaving the property in possession of Cozart, and by voluntarily suspending his right to proceed on his judgment .and execution, lost thp priority of lien which the law gave him ; and which, being once gone by his own voluntary act, canrtot be regained. The principle here contended for is analogous to that. under which a surety may be discharged under an ordinary contract. If the creditor, without the consent of the surety, puts it out of his power to proceed for even a single day against the principal debtor, the surety is discharged. . So, by. parity of reasoning, if a judgment creditor suspend his right to enforce his lien but for a day by his voluntary act, his priority over other judgment creditors is gone.
    The jury was also well authorized to find in favor of Clarke, on account of the course pursued by Brown in regard to his execution. It is to be observed that the judgment was obtained by confession, just before the setting of the court which rendered Clarke’s judgment. Cozart was the neighbour, of Brown ; his brother, the surety in the delivery bond, lived with him; he was poor, and wholly insufficient as surety, for such an amount. With a knowledge of all this¿ Brown accepted him as surety in the bond, indorsed his approval upon it, thereby discharging the sheriff from responsibility for taking insufficient security, and permitted the negroes to remain in custody of Cozart. They so remained until, the marshal levied the execution of Clarke, when both Cozarts. absconded, and carried off the remaining slaves,, enough, or nearly enough, to have satisfied Brown’s execution. From these facts and circumstances, the jury were well warranted in concluding that the judgment was confessed, with the understanding that Cozart was to remain in possession of his slaves, on giving his brother as surety ; that this was intended to keep off other creditors ; and that, finding it did not have the desired effect, he absconded to~~Texas. Such conduct was calculated. t(y hinder other creditors, andwas fraudulent and void as to Clarke,the present defendant in error.
    In conclusion, the,defendant in error, by his counsel, contends, that upon the whole case it appears that substantial justice Ras been attained, and that the judgment should be affirmed.
   Mr. Justice NELSON

By the law of the State of Mississippi, a judgment is a lien upon the personal as well as real property of the defendant, from the time of its rendition (Smith et al. v. Everly. et al., 4 How. 178 ; Commercial Bank of Manchester v. Coroner of Yazoo County, 6 How. 350); and if the first judgment obtained by Brown against Cozárt could be upheld against the objections taken to it, there is no doubt, according to the law of Mississippi, that the instructions, given by the Court belowtó the jury were erroneous.- That judgment was docketed on the ,18th of May, 1840, whereas Clarke’s was not recovered till the 16th of June following.

It is insisted, however, that the seizure ofx the property of the defendant by the sheriff, under the.first judgment, and discharge of it .on the execution and delivery of thé forthcoming bond, operated to extinguish the lien, and. let in that of the junior judgment of Clarke, so as to give it the preference. This raises the principal question discussed in the case..

• By the act of 1827 (Laws of Miss., p. 123, § 2), the sheriff or other officer is required, upon the levy of an execution upon pérsonal property, to take a bond, if tendered, with sufficient security, from the debtor, payable to the creditors, reciting thé service of such execution, and the amount due thereon, in a penalty of double the amount of such execution,, with condition to have the property levied on forthcoming at the dáy of sale ; aad if the owners of such property or the defendant in the execution shall fail to deliver the • same according to the condition of the bond, such sheriff or other officer shall return, the bond so forfeited, with the execution, to the court from which the same issued, on the return day thereof; and every bond so forfeitéd shall have the force and effect of a judgment, and execution shall issue against all the obligors thereon, &c.

Under this statute, it appears to have been uniformly held in the courts of Mississippi, that the bond thus given to the creditor on the seizure of the goods was intended as a substitutéd security for the lien acquired by the judgment and seizure ; and consequently, on its execution and delivery, the goods, by operation of law, are released from all charge, and left in the possession of the debtors as free and unencumbered as before it attached ; and if the property is not delivered, in pursuance of the condition, the remedy is then upon the bond, which on the breach or forfeiture becomes, by operation of tbe statute, a statutory judgment against the defendant and sureties from that time, followed by a new lien upon the real and personal estate of all the obligors. The original judgment is merged and satisfied by the new and more comprehensive statutory judgment upon the bond, and the remedy of the creditors limited to the enforcement of this judgment.

This is, in substance, the view of the statute as expounded by the courts of Mississippi in several cases, and particularly in the case of the Bank of the United States v. Patton ef al. (5 How. 200) in the Court of Appeals, which was argued twice, and very fully considered by the court. (Stewart v. Fuqua, Walk. R. 175 ; Witherspoon v. Spring, 3 How. 60 Archibald et al. v. Anderson, 2 How. 852.; King v. Terry, 6 How. 513 ; Minor v. Lancashire, 4 How. 347.) In the case of the Bank of the United States v. Patton, the court, speaking of what would have been the effect of the forthcoming bond, if the statute had not annexed to it the force of a judgment, say,— As it releases the levy, and restores the property to the debtor, it is tantamount to a satisfaction of the execution, and the creditor would be left to pursue his remedy upon the bond.”

The court then liken it to the replevin bond in Virginia, which had been held to be a substitute for the original judgment, and operated as a satisfaction ; and add,— u It was no doubt in view of this- principle that the framers of our statute saw proper to relieve the creditors from the'delay and expense of a second suit upon the bond, hy giving to it after forfeiture the force of a judgment against all the obligors therein, with a consequent right to have execution on the same; and also to provide, that no security. should be taken on the execution which is sued out upon the new judgment.”

It will be seen, therefore, that the forthcoming bond and statutory judgment consequent upon the forfeiture, in its operation and effect, reversed the original position of these parties in respect to . the priority of lien under their respéctive judgments, and gave to Clarke, the plaintiff below, the preference, his judgment having been docketed the 16th of June, and the new judgment of Brown not taking effect till the 17th of August, the date of the forfeiture 'of the bond. (Minor v. Lancashire.)

. If the case stood upon this footing, it is -very plain that Clarke, the purchaser under the sale of the marshal, acquired the better title- to the property in question, and that the instructions were in conformity to the law of the case.

It is contended, however, that the quashing of the - forthcoming bond, and consequently the new statutory judgment, operated to revive the original one, and to restore the priority of lien, the same as it stood before any of the proceedings on that judgment had intervened.

We do not assent to this view of the effect of the order vacating the new judgment, so far, at least, as respects the liens or rights of third parties which have legally attached in the mean time to the goods of the defendant, discharged from the original judgment by the giving of the forthcoming bond. After that lien was suspended or discharged, the original judgment being, in contemplation of law, satisfied by the new and substituted security, the debtor was at liberty to deal with the property as his own, and it remained in his possession, subject to any charge or lien impressed upon it either by the act of the party, or by operation of law, the same, after the forthcoming bond, as before the entry of the original judgment. Possibly as between the parties the judgment revived, but it would be against principle, and work manifest injustice, to give to it this retrospective operation, so as to extinguish the intermediately acquired legal rights of third persons. We deny to it this effect.

,Jt would be otherwise, if the forthcoming bond had been shown to’be void, as it might then be treated as a nullity, and as affording nq foundation for. the statutory judgment consequent upon the forfeiture. Under such circumstances, the lien of the original judgment would remain unaffected, and might be enforced by execution ; it would then, of Course, continue uninterrupted by the lien of any subsequent judgment entered up against the defendant.

This view of the statute was taken by the court of Mississippi, in Carleton et al. v. Osgood et. al. (6 How. 285) .

But no such ground is presented in the record before us ; nor did it exist in point of fact in the case. On the contrary, the forthcoming bond was in conformity to. the. statute, and the only reason for the action of the court in quashing the proceedings, for aught that appears or has been shown, was either that the tribunal conceded to the plaintiff the right to vacate his own judgment at his election, and thus voluntarily give up all the rights acquired under it, or that the surety was irresponsible, which latter ground would probably have been unavailing had the fact, appeared before the court, that Brown himself, with.full knowledge of all the circumstances, approved of the sufficiency of the security.

At all events, it is enough to sustain the ground upon which wé have placed the priority of lien upon the property, that, for aüght appearing in the case, the new judgment of Brown upon the forthcoming bond was regular, and existed in full force and effect until set aside and vacated on Iris own motion. For, if so, it is clear, upon the statute and decisions of the courts of Mississippi, that the lien of his original judgment ■ against Cozaft became thereby lost and postponed, so as to let in that .of the junior judgment of Clarke, and consequently the sale of the marshal, by virtue of the execution under it, vested- in the purchaser the better title.

We have thus far examined this cáse upon the law of Mississippi, where the cause of action arose, as we. understand it to have been expounded and applied by the courts of that State.

Another view may be taken, leaving out of consideration the priority of lien, as acquired under the judgments of the respective parties, and looking solely.-to priority as acquired by virtue of an actual seizure of the property under execution, regarding that as the test in cases where the conflicting executions issued out of the federal and state courts, and to the executive officers of the different jurisdictions. (Hagan v. Lucas, 10 Peters, 400.) In this aspect of the case, the legal result is equally decisive in favor of the right of, the plaintiff below.

If we have not misapprehended the rule of law prevailing in Mississippi in the view already taken, the right to the property acquired under the seizure of the first execution of Brown became extinguished by the operation and effect of the forthcoming bond. No title, therefore, can be set up by virtue of that seizure.

The. case, then, as it respects the right depending upon priority of actual seizure and legal custody of the property, instead of priority of judgment, stands thus : —- The marshal levied upon the slaves on the 9th of November ; the sheriff not till the 7th of December following. The former, therefore, under the law giving effect to the first seizure, was entitled to the property, and of course the purchaser at his call acquired the better title.

In every view we have been able to take of the case, we áre satisfied the judgment of the District Court was right, and should be affirmed.

The court have had some difficulty in noticing the exceptions taken to the instructions in this case, in the form in which they are presented upon the record. It is matter of doubt whether they point to the instructions given and refused to the jury, or the refusal of the court below to grant a new trial. If to the latter, no question is presented upon which error would lie, according to the repeated decisions of this court. (4 Wheat, 213 ; 6 Wheat. 542.)

The counsel were probably misled, in making up the record, by the practice in Mississippi, where error will lie to the appellate court for a refusal to grant a new trial by statute. (Laws of Miss., p. 493, § 53.) But the rule is otherwise in the federal courts. That State has also a statute providing for the case of exceptions to be taken in the progress of the trial, in the usual form (p. 620, §40), which is the form that should have been observed in this case. The practice is particularly stated and explained in. Walton v. The United States (9 Wheat. 651), and in several later cases (4 Peters, 102).

The practice is well settled and exceedingly plain and simple, and will be strictly adhered to by the court,


text:
    The Tombigbee Railroad Company v. William H. Kneeland.
    A corporation, created by the laws of another State, can sue in Alabama upon a contract made in that State.
    The decision of this court, in 13 Peters, 519, reviewed and confirmed.
    This case was brought up by writ of error to the District Court of the United States for the Middle District of Alabama.
    It was an action of assumpsit on a promissory note made by the defendant to the plaintiff. The declaration stated, that the Tombigbee Railroad Company was a corporation constituted by law in the State of Mississippi, the officers and stockholders of which were citizens of. that State.; and that the defendant, who was a citizen of the State of Alabama, by his promissory note, made at Gainsville, in the last mentioned State, on thé 20th of January, 1838, promised to pay to the plaintiff or order, six months after date, at the plaintiff’s banking-house in Columbus, in the .State of Mississippi, the sum of nine thousand dollars, for value received,;— concluding with the usual averment, that the defendant had not paid.
    The defendant appeared and .pleaded : — 1st. Non-assumpsit. 2d. That the-plaintiff was a banking institution without the limits of the State of Alabama, to wit, in the State of Mississippi, and, unauthorized by and contrary to the laws of the State of Alabama, exercised the franchise of banking in the State of Alabama, on .the day'and year in the declaration mentioned, and at Gainsville, in the county of Sumpter, in the State last aforesaid, in the unlawful exercise of the said banking franchise, did, as a bank, discount the said note, contrary to the laws of the -State of Alabama.
    3d. That the plaintiff, unauthorized by and contrary to the laws of the State of Alabama, did establish at Gainsville, in the county of Sumpter, in the State of Alabama, an office and bank to carry on in the State of Alabama the franchise of banking, and, in the exercise of that business, issued their bills and promissory notes for the purpose of circulation as cash bank-bills and currency, on the day and year in the declaration mentioned, and before and after ; and that the note, in the declaration mentioned, was made to and for the purpose of same being discounted by the plaintiff, exercising such hanking privileges as aforesaid, on the day and year and at the place aforesaid, and that the plaintiff did discount the said note, and issue therefor its note and bills, in the exercise of the. banking franchise aforesaid, contrary to the laws of Alabamá, by reason whereof the said note was void. .
    4th. That there was no such corporation as the plaintiff had in that behalf averred in his declaration.
    The plaintiff joined issue on the first and fourth pleas', and demurred to the second and third. And upon the hearing of the-demurrers, the District Court held that these pleas were sufficient in law to bar the plaintiff of its action, and gave judgment in favor of the defendant. From this judgment the present writ of error is brought.
    The case was submitted to the court without argument by the Attorney-General, for the plaintiff in error, referring the court to 13 Pet. 519. No counsel appeared for defendant.
   Mr. Chief-Justice TANEY

delivered the opinion of the court.

The only question arising on this record is, whether, by the laws of Alabama, a contract made in that State by the agents of a corporation created by the law of another State is valid. This point was fully considered and decided in the case of the Bank of Augusta v. Earle, 13 Pet. 519, and cannot now be considered as open for argument in this court. The principles decided in that case must govern this ; and the judgment of the District Court is therefore reversed, with costs.


author: Mr. Justice WAYNE

text:
    Alexander Levi v. John Thompson et al.
    The holder of a register’s certificate of the purchase of a lot in the town of Dubuque, lawfully acquired, and issued by the register under the two acts of 2d July, 1836, and 3d March, 1837, has such an equitable estate m the lot, before the issuing of a patent, as will subject the lot to sale under execution under the statute oflowa.
    The doctrine established, in the case of Carroll v. Safford, 3 Howard, 441, reviewed and confirmed.
    The commissioners under the act of the 3d of March, 1837, amendatory of the act entitled “ An Act for laying off the Towns of Fort Madison,” &c., approved July 2d, 1836, confirmed unto Alexander Levi and John Thompson, as tenants in common, the right of purchase, by preemption, of lot No. 68, in the town of Dubuque, being of the first class, containing seventeen one hundredths of an acre. The lot was entered in the land-office, and the receiver’s receipt given to Levi and Thompson for the purchase money, on the 1st of April, 1840. It appears that William Chilson and Joel Campbell had instituted a suit, on the common law side of the District Court of Dubuque County, against Levi and Thompson, and that judgment was rendered against them for $780‘50 and costs of suit, in Aügust, 1839. Execution was issued upon the judgment in due form of law; it was placed in the sheriff’s hands to be executed, and. he levied upon the lot for which Lee and Thompson had a preemption certificate, and the same was sold to the execution, before a had been issued by the United States to Levi and Thompson for the same. Thompson, the tenant in common with Levi, became , the purchaser, paid the purchase money, and .took the sheriff’s deed for the same. Thompson, in November, 1841, sold the lot to the other defendants, who bad paid for the same before Levi sued out his bill. They state, in their answer to Levi’s bill, that when they bought the lot from Thompson, they were informed by him, and so supposed the fact to be, that he had a full and perfect right thereto, free from all encumbrances and of all claim by any other person or persons, and that at the time of their purchase, and when they made the payments to Thompson for the . same, they were utterly ignorant of any title or claim to property in Levi, or that he set up or pretended to háve any claim or title to the same. That the first notice they had of any such claim by Levi was about three weeks before the date of their answer to his bill,, when he sent them word that he desired them to make a division of the property with him, They further state, at the time of their purchase títere was a small log-house upon the lot, of little or no value to them, which they tore down and removed.. That they went into quiet and peaceable possession of the lot at the time of their.purchase, and have so remained ever since ;. that they had made lasting and valuable improvements upon the lot; that for a -considerable part-of the time whilst- they were making these improvements, Levi had been in the city of Dubuque, and they believe must have discovered them, as he frequently passed and repassed the lot, and never informed them bf his having any claim to the same. The cause was. tried in the District Court, upon the bill and answers of the defendants,, and the court adjudged that the' petition of the complainant should be dismissed. An appeal was taken to the Supreme Court, and that court affirmed the decree .of the court below1..; and from that court it has been brought to this court by appeal.
    The cause was -submitted on printed arguments, by Mr., Washington Hunt, for the appellant, and Davis and Crawford, for the appellees.

      Mr. Hunt

    contended, that the legislature of the Territory of Iowa could confer no authority upon the sheriff to sell ,the property in question, because the title was yet in the United States, and had not passed to Levi and Thompson at the time of the sheriff’s sale, and cited Bagnell et al. v. Broderick, 13 Peters, 436, and Wilcox v. Jackson, 13 Peters, 498, 516, 517.
    He also contendéd. that the sheriff’s deed could pass no title, because it was sold as real, estate, whereas the fee simple was at that time in.the United. States.

      Mr. Hunt also raised other objections, which it is not necessary to state, because the decision of the court turned upon a single 'point..

      Messrs. Davis and Crawford, for. the appellees,
    relied upon the validity of the statute of Iowa.
   delivered the opinion of the court.

The only question raised by the plea tings in this cause, .and it seems to us the only one argued at its hearings in the District and Supreme Courts of Iowa, was, whether the lot, for which Levi and Thompson hád á preemption certificate, which had been entered and paid fori by them, was or was not liable to be sold upon execution'issued üpon a judgment rendered against them previous to'a patent having been issued for the land by the government of the United States’.' Their right to a preemption purchase of the lot was acquired under the act of the 2d of July, 1836, ch. 262, entitled ££ An Act for laying off the Towns of Fort Madison and Burlington, in the Coimity of Des Moines; and the Towns of. Bellevue, Dúbuqüé, and Peru, in the County of Dubuque, Territory of Wisconsin,and for other Purposes,” and under the act of the 3d of March, 1837,‘ch.' 36, amendatory of the preceding act just recited. The right of Levi and Thompson to á preemption, under those acts; is not a controverted point in. the case. Taking it for granted, then, that it had been lawfully'acquired, that they entered the land in the proper Office, and that it was paid for in their names, this'gave them the right to the register^ certificate of • purchase, to. be transmitted to the commissioner of the general' land-office, as in other, cases of the sale of public lands. The fee continues in the United States until the issue of the patent, but the right to the fee was in the purchasers, and they were entitled to a patent-for the land, unless there was some legal objection by the United States against issuing it, of which this court is not. advised..

This right to the fee ánd a patent in this case gave to Levi and Thompson that u equitable right ” to the land; üudér the certificate front the receiver of the land-office, which the law of Iowa has made subject to execution for the satisfaction of judgments. Stat. Law Ter. of Iowa, 197, January 25th, 1839.

We further remark, that the principle upon which the case of Carroll v. Safford, 3 How. 441, was decided, covers this cáse. Nor do we find any thing .in the case of Bagnell v. Broderick, or Of Wilcox v. Jackson, cited by the counsel for the plaintiff in error, or in any .other case decided by this court, which conflicts with-the decision it here gives.

We direct the decree of the court below to be affirmed.


author: Mr Justice McLEAN

text:
    McKean Buchanan, Plaintiff in error, v. James Alexander.
    MoReyin the hands of a purser, although it may be due to seamen, is not liable to an attachment by the creditors.ofthose seamen..
    A purser cannot be distinguished from any other disbursing agent of the government ; and the rule is general, that, so long' as money remains in the hands of a disbursing officer, it is as. much the money of the United States as if it had not been drawn from the. treasury. .
    - A decision of a state court, sanctioning such an attachment, may be revised by this Oburt under the twenty-fifth section of the Judiciary Act. '
   Mr Justice McLEAN

delivered the opinion of the court’. .

This is one of six .cases depending upon the same principle, which have been brought before this court by writs of error to the Circuit Superior Court for the county of Norfolk, State of Virginia, under the twenty-fifth section of the Judiciary Act of 1789.

Six writs of attachment were issued by a justice of the peace of the. above county of Norfolk, by. boarding-house keepers, against certain seamen of the frigate Constitution, which had just returned from a cruise. The writs were laid on moneys in the hands of the purser, .the plaintiff in error, due to the seamen for wages. Thé money was afterwards páid to the seamen by the purser, in disregard of the attachmentsj by the order of the Secretary of the Navy.

The-purser admitted before the justice that the several sums attached were in his hands due to the seamen, but contended he was not amenable to the process. The justice entered judgments against him on the- attachments. The cases were appealed to the Superior Court of the county, which affirmed the judgments of the justice. A^id that being the highest court of the State which can exercise jurisdiction’ in tibe cases, and its judgments being against a right and authority set up under a law of the United States, may he revised in this court by a writ of error.

The important question is, whether the money in the hands of the purser, though due to the seamen for wages, was attachable. A purser, it would seem, cannot, in this reSpect, be distinguished from any other disbursing agent óf the government. If the creditors of these, seaméri may, , by process Of. attachment, divert the public money' from its legitimate and' appropriate object, the same thing may be done, as regards the pay of our officers and men of the army and of. the navy; and also in every other case where thé public funds-may be placed in the hands of an agent for disbursement. To state such 'a principle is to refute it. No government can sanction it. At att'times it would be found embarrassing, and under some circumstances it might be fatal to the public service.

The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be diverted and defeated by state process or otherwise, the. functions of the government may be suspended. So long as money remains in the hands of a disbursing officer, it is as much the money- of the United States, as if it had not been drawn from the treasury-... Until paid over by the agent of the govermnent to the person entitled to it, the fund ..cannot, in any . legal sense, be considered a part of his effects. The purser .is not the-debtor of the seamen.

It is not doubted that cases may have arisen in which the government, as a matter of policy or accommodation, may have aided a creditor of one who received money for public services; but this cannot have been under any supposed legal liability, as no such liability attaches to the government, or to its disbursing officers.

We think the question in this case is clear of doubt, and requires no further illustration.

The judgments are reversed at the costs of the defendants, and the causes are remanded to the state court, with instructions; to dismiss the attachments , at the costs of the appellees .in that court.


author: Mr. Chief-Justice TANEY Mr. Justice McLEAN. .

text:
    Lyman A. Spalding, Plaintiff in error, v. The People of the State of New York, ex rel. Frederic F. Backus, Defendants.
    This case whs brought up from the. Supreme Court for the Trial of Impeachments and the C orrection of Errors of the S tatic of New York, by a writ of efror issued under the ?6th. section of ;the Judiciary Act. .
    The facts were these.
    The. relator, Frederick F; Bapkus, previous -tojthe.20th .day of July, 1840, had obtained' á júdgment.in the Supreme.Cpiirt of . the11 State of New York against Lyman A.. Spalding,.the, plaintiff in error, -for the-nonperformance of promises,, and. on the . said last mentioned day die relator, as complainant, filed a . creditor’s bill against the said Spalding, in the Court of Chancery of said State, before the Yice-ChanoeUór of the Eighth Circuit, on which an injunction was issued and served on said Spalding, to restrain, him, among other things, from collecting, receiving, .transferring, selling, assigning, delivering, or in any way or manner using, controlling, interfering or meddling with, or disposing of, any property, móney, or things in action belonging to him.
    On the 13th- day of December, .1841, an order was made by said court to attach said Spalding for a violation of said- injunction, and such proceedings-were had in said court, that on the 21st day of March, 1842, the said court declared and-adjudged that the said Lyman A. Spaldihg had. been and was guilty of a contempt of court in wilfully violating said injunction, by disposing of property and paying out money contrary to the terms of said injunction; and that such misconduct of the said Lyman A.. Spalding was calculated to and did impair, impede, and prejudice the rights and remedies of the complainant in the said cause, and jt was ordered that he pay a fine for said contempt to the amount of $ 3,000, and the costs and expenses in relation to said contempt of ‡ 196-51; and that he be committed to the common jail of the county of Niagara, until the fine,, costs, and- expensed are paid, and that a mittimus issue accordingly to the sheriff. And it was also ordered, that the costs and expenses be paid to the solicitor of the relator, and the $ 3,000 be paid to the clerk of said court, subject to the further order of the court.
    On the 6th day of May, 1842, an alias mittimus was issued; on the 7th day of May, the said Spalding was arrested, and continued under said arrest until the 29th day of September, 1842.
    On the 11th day of April, 1842, the said Lyman A. Spalding presented his petition to be declared a bankrupt, pursuant to the act of Congress entitled “ An Act to establish a uniform System of Bankruptcy throughout the United States,” passed August 19th, 184Í, ch. 9, and on the 17th day of September, 1842, was duly and fully discharged, under said act, from all the debts owing by him., at the time of presentation of his said petition to be declared a bankrupt, and received.his certificate thereof, pursuant to said act.
    Afterwards, on his application, he was brought before a Supreme Court. commissioner of said. State, on habeas corpus, and claimed to be'discharged from the mittimus, on the ground of being discharged by his certificate from the fine, costs, and expenses. The relator, having been duly notified, appeared by. counsel and opposed said discharge,, but the commissioner, on the presentation of < the said certificate, discharged said Spalding from the mittimus on the 29th day of September aforesaid.
    On the 18th day of November after, the relator made application to the said Vice-Chancellor for another mittimus to enforce the collection of said fine,- costs, and expenses, and an order was entered that the said Spalding show cause before the Vice-Chancellor why the same should not issue.
    On the 28th of said month, the relator and Spalding appeared before said Vice-Chancellor; and the said Lyman A. Spalding presented his certificate in bankruptcy aforesaid, and claimed that by the said bankrupt act he was by said certificate discharged from all his debts, and from the said fine, costs, and expenses.
    On die 18th day of January, 1843, the said Vice-Chancellor ordered, adjudged, and decreed that a new mittimus issue, to commit the said Spalding to the common jail iff the county of Niagara, until he pay the said fine; costs,, and expenses, $ 196-51, to be paid to the solicitor of the relator, and the $ 3,000 be paid to the clerk of the court, subject to the further order of íhé court, and declared and decided that the discharge of the said Lyman A. Spalding, under the bankrupt law, did not entitle him to,be released from the payment of the said fine,, costs, and expenses, nor from imprisonment for its collection..
    From which decision and decree, the said Spalding- appealed to the Chancellor of the said State, and the said Chancellory on the 2d. day of June, 1843, affirmed the decision and order or decree appealed from, and decided that the said defendant, Lyman. A. Spalding, was not and could not be discharged from the said-fine, costsy and expenses under the bankrupt act. 10-Paige, 284.
    And on appeal by the said Lyman A. Spalding to the Court for die Correction of Errors, of. the State of. New -York, the said court affirmed the said order or decreie of tiré said Chancellor, with costs and interest on the . amount , decreed to be paid, and decreed that the said Spalding was nót by the bankrupt aet discharged from the payment of. the . said fine, costs, and expenses-.
    The following is the opinion of the ,Court ,for the Correction o? Errors', as pronounced by Chief-Justice Nelson.
    The appellant-was adjudged guilty of a contempt bf court for a wilful violation oi an injunction by theVicerChancellor of the Eighth Circuit, on the 2.1st of March,. 1842, and amerced, in,the sum of $ 3,000, and costs and expenses' of the proceeding, which were taxed at $ 196*51, with directions that he; be ¿committed to the jail of Niagara county until the samé were paid,
    . On or about the 7th of May, he was. arrested for,nonpayment of said fine; .but succeeded in preventing, an..actual commitment into the. custody of the jailer, by the use of -the writ of habeas corpus, until he obtained *his discharge under- the bankrupt law, 17th September following, whén he was soon after set. at liberty on the production of said discharge, by Joseph Center, a commissioner to do the duties of a judge of the Supreme Court at chambers.
    On the 18th of November, the relator, Upon full statement of the .foregoing facts, applied to the Vice-Chancellor for a recommitment, on the ground that the discharge of the- commissioner was without . authority, and void; which, after hearing counter affidavits,, and counsel for. both parties, he adjudged accordingly, and entered an order for said recommitment to close custody till the fine was paid.
    On appeal to the Chancellor, this order was affirméd,. and the question is now here bn appeal to this court.
    Chief-Justice NELSON. Upon the view I have taken of the case, the only question at aU material to examine is, whether the fine inflicted upon the appellant for a wilful violation of the injunction is a debt within, the meaning of the bankrupt law, so that his discharge, granted under it, will operate to exonerate him from imprisonment. If not, then, beyond all question, the act of the commissioner in discharging the appellant from the mittimus was without authority, and the order of the.Vice-Chancellor directing a recommitment proper.
    By the 4th section of the bankrupt’ law (LUwsCong,’ 1841,- p. 11), the certificate shall “ be deemed a full and.complete discharge of all debts, contracts, and other engagements of such bankrupt which are provable under this act,” &c.
    .. The adjudication upon which the fine was imposed, is as follows: — u The said Lyman A. Spalding has been and is guilty of a contempt of this court in wilfully, violating thé said injunction, and by disposing, of property and receiving and paying out money contrary to the térms of the said injunction ; and that said misconduct of the said Lyman A. Spalding was calculated to, and actually did, impede and prejudice the rights and remedies of the complainant in the said cause. ”
    This act, for which the appellant has thus been adjudged guilty, is a criminal offence under the Revised Statutes' (vol. 2, p. 577, §14), and was before, at-common law (4 B1. Com. 129), for which he was liable to an indictment, and, on conviction, to fine and imprisonment,
    ' He might have been punished in this way, and subjected to a fine not exceeding $250, and imprisonment for one year. ' (2 Rev. Stat. 582, § 46, and p.'577, § 14.)
    ■ But'this remedy by indictment .for suppressing the mischief is oftentimes found too tardy for the exigency of the case ; and hence the Jaw has áíso: authofizédthe more Summary proceeding by attachment, as for a; criminaf 'contempt, 'whereby "the offender is arraigned at once upon thé charges; and thm course of justice more promptly vindicated ánd,sustained.■’ As'has been’well remarked in reference to this subject, laws1, without a competent authority to secure-their administration from disobedience and'contempt, .would be vain and nugatory. A power; therefore, inthe courts of justice to suppress such contempts by ah immediate attachment of. the offender results from the first principié* of- judicial establishments, and must be an inseparable attendant upon-every superior tribunal.
    This summary mode of punishment is the one that has been resorted’ to in .'the instance before us ; and upon’ a conviction;; the propriety and justice Of which is not in question, a fine of $ 3,000 and costs of proceedings has been imposed ; a penalty, as we have seen, for a strictly criminal offence; and inflicted under, a strietly crimina: proceeding.
    It appears to me,' therefore, the very statement of the case is enough to show, that there is no color for the ground ■ taken, that the fine is a debt'within the bankrupt law, any more than would exist in the case' if it' had been imposed after conviction, on an indictment for any. other of the numerous minor offences within the calendar of crimes.
    ■ It is contended, however, that these proceedings, being under the provisions in the Revised Statutes (vol. 2, p. 440, tit;. 13) designed for the purpose of enforcing civil remedies,, should, though in form criminal, be regarded simply as another remedy for collecting the debt claimed in. the suit in the Cpurt of Chancery, and upon which they have been founded ; that the fine is, in point of fact, imposed for the purpose of being applied to the extinguishment of that debt, whenever, in the progress of the suit, it shall have been established; -that it is but incidental ,to the debt, and dependent upon it, and a discharge pf the one must necessarily discharge the .other.
    The answer to all this is, that several cases of strictly criminal contempts have been incorporated into the provisions of the statute under this head, “ Of proceedings as for contempts, ip enforce civil remedies,” &c., of which the cáse before us is one, for the purpose of authorizing the court to impose, the fine, with a view to the actual loss or injury sustained by the party aggrieved, jn consequence of the criminal act, and of applying the money in satisfaction of the same, instead of imposing it for the benefit of the peppl^.
    This is most manifest from a perusal of. the several provisions. We find there the case of persons assuming to be officers, attorneys, solicitors, and counsellors of the court, and acting as such without authority. Also for rescuing property from seizure, and Jiersons from arrest; for unlawfully detaining a witness or party rom court; and for any other unlawful interference with the process or proceedings in the action; the refusal of a witness to attend or to be sworn; the improper conduct of jurors, m-convers-. ing with a party to the suit, receiving cpmmumcatibns from him, or from any other person, in relation to the merits; for disobedjence-to any lawful order, decree, or process of. the court, &c. (2 Rev. Stat. 441, § Í, Sub. 3, 4, 5, 6.)
    AH these are, strictly, cases of criminal contempts, which have nothing to do with the coHection of debts, or. enforcement of civil remedies beyond the support and vindication of the general administration of the laws ; and the foUowing provisions of the statute, regulating the punishment, to be inflicted, shows the reaspns for bringing them under this head. (§ 20, p. 443.) If the. court shall adjudge the defendánt tó have been guilty of the misconduct charged, and that , such misconduct was calculated to, or .actually did, defeat, impair, impede, or prejudice the rights or remedies o« the party, it- shall- proceed to impose a fine, of to imprison, or both, as the nature of the case sháU require. . (§ 21.) If.an. actual loss or injury shall have been produced by. the misconduct alleged, a fine shaH be imposed sufficient to indemnify the party, and to satisfy his costs and expenses, which shall be paid over on the order of the-court; and the payment-and acceptance of such fine shall be a bar to any action by the aggrieved party to rebover damages for said injury.. (§ 23.) When such misconduct consists in the omission to perform some act or duty yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty, &c. ■
    Here, in cases confessedly criminal and indictable, and the penalties for which,' ordinarily, would go for the benefit of the people, the courts are authorized to impose them, with a view to the indemnity of the party aggrieved, making, at the same time, his acceptance of the fine a bar to any private action for the injury.
    But the fine imposed is no less a penalty for á criminal act, and intended as a punishment for the same, than if inflicted for' the benefit of the people. The imposition, in the Way prescribed by the statute, accomplishes the double purpose of punishment for the misconduct, on the one hand, and indemnity to the aggrieved party, on the other.
    I am satisfied, therefore, that the discharge under the bankrupt larw has no sort of application to'the casé, and that the order for the recommitment by the Vice-Chancellor was proper and legal.
    It has been urged, that, whether the commissioner erred, or noi, in discharging the appellant from "the mittimus; under the writ of habeas corpus, the Vice-Chancellor had no authority to recommit; that the order discharging him should have been first reversed by Certiorari before the second commitment. (§61, p. 473.)
    ■1 This would be true, if the commissioner had' had jurisdiction over the subject matter, and had rendered only an erroneous judgment in the premises; but has no application where his proceeding is wholly without authority, and void, as in this" cáse. (2 ReV; Stat. 470, § 42, Sub; 3, § 44. Cable v. Cooper, 15 Johns. R.' 152.) (A Copy.) •
    N. HILL, Jr., Reporter’< ;
    To review this judgment of the Court.of Errors, the present writ of error was brought.
    The case was argued by Mr. Curtenim, for the plaintiff in error, and Mr. Delano, for the defendant, in error.

      Mr. Curtenim, for the plaintiff in. error.
    By the affirmation of the said order or decree, it is decided, that the said fine, costs, and expenses is not a debt', within the late bankrupt law of the United, States. And that the certificate of the plaintiff in error under the said law did not discharge him from the payment of the said fine, costs, arid expenses.

    We- insist on the contrary, and shall seek to maintain, that the said fine, costs, and expenses imposed on the said plaintiff in error is a debt. And that his certificate of discharge under the said bankrupt law did and does discharge him from the payment thereof.

    On the decision of these points rests the whole of this cause. We.make, therefore, as our

      First Point, That the fine, costs, and expenses imposed on the plaintiff in error, previous,to his petition in bankruptcy, was a debt, from which he¡. was duly discharged by his certificate under , the bankrupt law of the United* States,.
    , Bythe late bankruptlaw (Laws of Congress, 1841,.chap. 9), “ any person whatsoever residing in any State or Territory of the United States owing debt*,1 may petition’.except where the debts were created by defalcation, as,” &c.., “ or. while acting in any fiduciary capacity, and oh compliance with, the act “ shall be entitled to a full discharge from:all his debts.” And that said discharge and certificate, when duly, granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts, and engagements of such bankrupt, which are provable under, this act,”
    In our case,1 there, is no pretence that the plaintiff in error or his debts come under any of the exceptions in the first section: or that, there is any exception in. the law Which excludes him or it. Put the decision is against us on the ground that the law itself was ' not intended to apply to a ease. like ours. What, then, is our case ?.....
    In answer, it becomes necessary to inquire by what power, under what statute, and for what purpose, the imposition of this fine, C0?t9¿ and expenses was made, and the plaintiff in error placed beyond the reach of relief from the bankrupt law,,and subjected to perpetual imprisonment.
    The power is claimed to be exercised by virtue of the revised statutes of the State of New York, “ as .for a contempt.”

    There are two statutes, under' the one or the other of which the fine, costs, and fexp'ensps were imposed. The one (2 Rev. Stat., 2d ed., 207) is entitled, “ Provisiohs concerning courts of record, their process and proceedings,” by which, power is given to punish as criminal contempts wilfid disobedience of any process or order lawfully issued or made by a court of record. The punishment to be hjfi'neor imprisonment, or both, but the fine is limited „to $ 250, and the imprisonment to thirty' days. And section 14 expressly states, that these sections shall not extend to any proceeding against parties or officers, as for a contempt, for the purpose of enforcing any civil right or remedy. Under this statute, the fine, &c., could riot have been imposed.
    The other statute.(2 Rev.. Stat., 2d ed., 410) is entitled, “Of proceedings, as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions,” which provides, that,
    § l. Every court of record shall have power to punish, by fine and imprisonment, or either, ariy neglect or violation of duty, or any misconduct, by which the rights or remedies of a party” in a cause .or matter depending in such court, may be defeated, impaired, impeded, or prejudiced, in the following cases,

      § 20. If the court shall adjudge the defendant to have been guilty óf the misfcbnduct alleged, and that such miáteonduct was calculated tb, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party, in a cause or matter depending in such court, it shall proceed to impose a fine, or to imprison him, or both, as the nature of the case shall require.
    § 21. If any actual loss or injury shall have been produced to any party by the misconduct alleged, a fine shall be imposed sufficient to-indemnify, such party, and to satisfy his costs and expenses, which shall be paid over to him on the order of the court. And in such case the payment and acceptance of such finé shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.
    § 22. In all other cases, the fine shall not exceed two hundred and fifty dollars, over and above* the costs and expenses of the proceedings.
    § 26. Persons proceeded against according to the provisions of this title shall notwithstanding be liable to indictment for the same misconduct, if it be an indictable offence; , but the. court before which a conviction shall' be had on such indictment shall take into consideration the punishment before inflicted, in forming its sentence.
    The adjudication was under section 20, as the mittimus is in the words of this section. And the fine, &c., is under section 21, for the purpose of indemnifying the relator for the removal of so much of the property, or money, on which he had a lien by his injunction.
    That is, it .belongs to the party, on his establishing his right to it by obtaining a decree of the court on his bill of complaint. ' The dumage was the money, or value of the property, on which the relator had his lien by his bill and injunction; the offence, the disposing of that amount by the plaintiff in error; the fine is the amount of that damage, termed by the statute a fine. It is a certain, fixed, and definite amount; a debt, and belongs to the relator if he obtains a decree on his bill; if not, it then belongs to the plaintiff in error.
    Here, then, we have the power, the statute, and the purpose under and for which the fine, costs, and expenses were imposed.
    But it is urged ágainst us that this is a fine for a contempt, an alleged wilful contempt; as though that implied a criminality which placed the unfortunate party adjudged guilty beyond relief, and interposed an insurmountable barrier between him and the benefit of the bankrupt law.

      (Mr. Curtenius then proceeded to argue that the object of this statute was only to enforce civil remedies; by the people’s interposing between party and party, and permitting a party to use the sanie process winch the people do in their cases of contempt; that the money was payable to one party toi indemnify him for the loss which he had sustained by thé act of the other party; that the offending party might still be indicted for the samé offence, which could not be the case if both were offences against the public; that m case the claimant failed afterwards to establish his right tó the money, it would be paid to the defendant, but never to the people; that even if it was a debt due to the people, it would-be discharged by bankruptcy, inasmuch as they had chosen to produce the relation of debtor and creditor between themselves and the offending party.)
    It is then a debt. 2 Jacob’s Law Dictionary, 200; Ex parte Smith, 5 Cowen, 277; Wallsworth v. Mead, 9 Johns. Rep. 367; McDougall v. Richardson, 3 Hill’s Rep. 558; Case of James Baker, 2 Strange, 1152. It is not only a debt, hut a debt .discharged by the bankrupt law. 2 Molloy, 442; Ex parte Parker, 3 Vesey, 554; 1 Deacon, 235; Hopcroft v. Farmer, 8 Moore, 424; Lewis v. Morland, 2 Bam. & Aid.,56; 1 Sch. & Lef. 169. These cases establish that the form of the process is not to be considered, but the cause of its issüing ; that if the ground of the proceeding be a debt, it is a. process of debt; and that if the process is to compel payment of a sum of money, it is a debt. The same views aré sustained by the following authorities:- — 2 Rose’s' Cases in Bankruptcy, 196; Cooper’s,.Cases in Chancery, 198; The King v. Edwards, 9 Bam. & Cres. 652;. 1 Bos. & Pul. 336; 1 Cowp. 136,.
    Second Point. That there is error in the affirming the decree of tiie $ 196*51 of costs'to be paid to the solicitor of the relator, and that the decree in this casé, being void in part, is void in whole, and must be reversed; 1 Moore’s Rep. 494; 4 Bl. Com. 285; 13 East, 190.
    Third Point. That if tim/ine was imposed for a criminal offence, the statute under which the same was imposed is repugnant to a law of Congress, and the Constitution of the United States, and is therefore illegal and void.

      It is repugnant to tke bankrupt law.

    1 it. Because it operates as a fraud on the act, by seeming. a preference of one creditor over the general creditors.
    2d., It seeks to compel the bankrupt to violate the act by paying one creditor before, and at the expense of, the others.
    ' 3d. It seeks to. compel a violation of the act, and debars the bankrupt of its benefits.
    The act declares all payments, &c., in contemplation of bankruptcy, and all preferencés, void, and a fraud on the act, and that the person making- such unlawful payments aind preferences shall receive no discharge.
    In our case, after the filing of his petition, the plaintiff in error was divested of all his property. He could not pay, for he had nothing. He could not pay the property in his schedules, because it did not belong to him. And neither the relator nor the court could receive, and if received, the assignee might have •recovered it again.
    The order and the mittimus, then, sought to enforce an illegal act, a fraud on the creditors of the bankrupt, and a violation of the principle of equality among the creditors

      It is- repugnant to the Constitution.

    1 st. If a criminal offence, it imposes, under the circumstances, an excessive fine, and a consequent cruel and unusual punishment.
    We have seen, that, on filing his petition in bankruptcy, the plaintiff in error was by the act divested of all his property. If he swove to the truth,'his schedules contained it all. If he did not, it still would belong to the assignee. His decree in bankruptcy was evidence that he had sworn to the truth, and the imposition of this fine, if criminal and going to the people, was excessive, and was a cruel punishment for the offence, for it imposed an imp ossibility. The law never imposes a fine, where it .presumes the party can have nothing to pay. Here was no presumption, but actual legal evidence, that there was nothing. If it be said that the order, was made before his petition, and without knowledge of it, we answer, with full knowledge of-all these facts it is sustained, and sought to be enforced.
    2d. It doomed him in fact, by the order of a single judge, to perpetual imprisonment.
    This follows of course; — divested of every thing, —: deprived of liberty, — the narrow bounds of a prison cell the field !of his enterprise,— and hours of solitude, without means for the exercise of his industry, could never enable him to pay this he'ávy fine, costs, and expenses.
    3d. It subjects him to punishment twice for the same offence.
    We have insisted, that, if the fine was imposed for a criminal contempt, it is still a debt. And that.if the offence is criminal, the statute is illegal and void; and that the only way in which the statüte can or ought to be sustained is on the ground that it is civil, and that the fact that the fine under it belongs to the party is proof that it is so.
    But it is objected, that the contempt is criminal, because, both at common law and by the statute, it is indictable ; we say it is also civil. If indicted, the fine is limited to $ 250. If civil, to the damages of the party. In our case, the contempt is civil, and the fine the damages ; and the pláintiff in error is still subject to indictment, and fine of $250. From which does he ask to be discharged ? Certainly not from the -fine on the indictment. Although from that, we insist, as before, that he would be discharged. We make as our
    Fourth Point. The judgment of the relator against the plaintiff ■in error, at the time of the filing of his petition under the bankrupt act, was' a debt, and the ground on which the proceedings in chancery were. had. The decree or order imposing the fine, costs', and expenses, therefore, is either a new" or additional debt, founded and resting on the original.; or, it is the remedy given by statute, to enforce, as for contempt, the payment of so much of the old debt.
    If the fine creates a new or additional obligation on the part of the plaintiiF in error to pay, it is a debt, — a debt of no higher nature or greater importance than a judgment for a tort, as a trespass on the person or the property of the relator, from which under the bankrupt law he would be discharged. (Cooke, B. R. 2, -5, 574.)

      ' As a new or additional debt, it was certain, fixed, and definite, previous to the filing of his petition, and provable under the ¿ct, —provable by the relator, being his ascertained damages, imposed for his benefit, and payable to him, by the statute ascertaining and fixing it. By his certificate,. therefore, he is discharged from it. 2 Rose, 196 ; Cooper, 198 ; 9 Barn. & Cres. 652 ; 1 Bos. & Pul. 336.
    Or, if so much of the old debt, and the order, decree, and mittimus the remedy under the statute for its enforcement, then the plaintiff in error, being discharged from me debt itself, must be from the remedy-for its enforcement.
    Here, then, the plaintiff in error was ordered and decreed to pay the relator $ 3,000 and the expenses; which $ 3,000 would and must, if received by the relator, reduce so much of his judgment; what act or event would discharge the plaintiff in error from this order ? Woiild the receipt of the relator ? Certainly. Would a satisfaction of that judgment under the hand of the relator? Undoubtedly. Why ? Because it would be a legal discharge.
    Then why not, by the law of the land, as fully and clearly discharged from that judgment by his certificate discharging him from all his debts, as though he had produced the satisfaction piece of the relator ? The one, the legal discharge of the relator; the other, equally so of the bankrupt law.
    When discharged from the judgment, he is discharged from the execution, or process to enforce its collection, or any part of it, the sanje as if imprisoned on a capias ad satisfaciendum ; the debt being discharged, the remedy passes with it, for there, is nothing left to operate upon. For, if the money had been paid into court, it never could have become the relator’s without proof of the existence of the judgment as alleged in his bill. If that judgment is satisfied at any time before the money paid over by court to the relator, the money would revert to the plaintiff in error, or, in this case, to the assignee in bankruptcy.
    As a new debt or obligation, or as a remedy for the collection of so'much of the old debt or judgment, therefore, the plaintiff in error is equally discharged by his certificate.
    Again, this is manifest. The relator sought by his bill to collect this debt, say $ 5,000 ; he obtains a lien on ‡ 3,000,, which is removed by the plaintiff in error ; and he is ordered to replace it by paying that amount into court. If done, the relator, suffers no injury'. The relator sustains his bill by proving his judgment or debt of $ 5,000, and obtáins an order that the ‡ 3,000 in court be paid over to him. Can it be supposed for a moment, that he is still entitled to a decree for the full amount of his judgment of ‡ 5,000 in addition ?
    And yet this is the certain result of the decision of the Court of Errors. For if the $ 3,000 is paid to the relator, it cannot be applied to the payment of so much of the payment, because the whole of that is discharged by the certificate in bankruptcy. And because, under the present decision, the fine is no part of it.
    The relator, .however, must prosecute his bill of complaint to a decree', (before he can obtain an order, for the payment of the $ 3,000 to him. And that decree must be for the whole amount of his judgment of $ 5,000, because, under the said decree, the $ 3,000 is no part; — tl.us receiving the $ 3,000, and a decree for $ 5,000 in addition. Presenting the extraordinary fact, — a fact, too, without precedent in the courts of law or equity of this or any other country (but in direct, violation of the common principles of both), -— that a party, seeking to collect a civil demand of ‡ 5,000, may, by the act of the defendant, occasioning no injur^ whatever to him, be entitled to recover of that defendant ‡ 8,000. A decision producing such a result is erroneous, and must be reversed.
    We have not urged in this court the point made by us in the courts below, in relation to the power of the Supreme Court commissioner to discharge the plaintiff in error on his certificate, because it does not involve the all-important questions on which this case depends, and if the certificate entitles him to a discharge, it ceases to be a point of importance.
    The point, that the voluntary part of the bankrupt law is unconstitutional, although on the printed points of the defendants in error in the court below, was not passed (Upon, raised, presented, or alluded to in the Court of Errors, and cannot, therefore be raised •here.

      Mr. Delano, for defendants.
    The points now made are the same, on the part of the defendants, as those insisted upon before the Court of Errors.

      First. The Supreme Court commissioner, Center, had no authority to discharge the plaintiff in error. All the proceedings before him were without jurisdiction, and void.

      1. Because the plaintiff in error was convicted and punished by tbe Court of Chancery, as for a criminal contempt, the cause of hist imprisonment being plainly and specially stated in the mittimus.
    A contempt, in its legal acceptation, means the treating of á court of justice, or person invested with judicial authority, in a contumelious or disrespectful manner, or in violating rules or orders.made by competent tribunals. 6 Petersdorff Abr; 106,157.
    The contempt, of which the plaintiff in error was convicted, was a criminal contempt. This is defined, in the Revised Statutes of New York, to be the wilful disobedience of any propess or order lawfully issued or made by any court of record. 2 Rev. Stat. 278 ; 2d ed. 207, § 10. ^ .
    ^ This species of contempt is also punishable, by indictment, by the laws pf New York. Rev. Stat. 692, § 14 ; 2d ed. 577.
    These enactments are merely declaratory, of the common law, as it existed previous to the Revised Statutes ; and the object of them is to define and limit the nature of the offence and the powers of the courts.
    Blackstone enumerates, among the crimes for which punishment might be judicially inflicted, a contempt of the process of any of. the superior courts of the king,
    “A solid and obvious distinction exists between contempts, strictly such, and those offences which go by that name, but which are punished as contempts only, for the purpose of enforcing some civil remedy.” This distinction is clearly marked in the Revised Statutes of New York, and the note of the revisers shows such was their intention. The contempt, of which the plaintiff in error was found guilty, was the wilful disobedience of the process of injunction. He did not refrain from doing what he was enjoined not to do, The power to punish for a wilful disobedience of process of this kind is essential to the administration of justice ; without it, the writ of injunction in many cases would be entirely nugatory. When the process, which goes by,the name of contempt, is; merely to collect money which the party may not be able to pay, it is then properly deemed a mere civil remedy. 4 Black. Com. by Chitty, 122 ; 1 Hawkins’s Pleas of the Crown, 149, 150 ; 1 Kent’s Com. 300, note (b), 3d ed. ; 3 Rev. Stat. 695, original note to §§ 10 — 15.
    If the contempt was a criminal contempt, it being clearly set out in the mittimus, the commissioner, Joseph Center, had no authority to discharge the plaintiff in error, nor had he any jurisdiction-ove" the matter. But it was the duty of the commissioner to. remand die party to the custody of the officer, if any contempt was plainly, and specially charged in the commitment. The discharge of the commissioner could not, therefore, be any valid objection to the issue of the second alias mittimus. It was not a subject' over which the commissioner had jurisdiction.
    . 2. Because the commissioner, not béíng a court of justice, as required by the bankrupt act, had no authority to try the fact, whether, the discharge was duly granted, or, not.
    The commissioner has merely the power of a judge of the Supreme Court at chambers. No issue could be made up or tried. The discharge might be impeached for fraud, &c., and no court can give effect to the discharge, which has not power to inquire into its validity. An issue was claimed, and the relator required an opportunity to try the question.
    The act of Congress neither expressly, nor by implication, vests any such authority in a commissioner, and he is expressly prohibited from its exercise by the forty-second section of the habeas corpus act. -
    3. -No discharge could be granted if the bankrupt , act releásed the plaintiff in error, except by application to the Court of Chancery. ,
    A Contrary course would lead to a conflict of jurisdiction between the several courts. The uniform practice in England and in this country is believed to have been to apply to the court where the judgment or decree is, or from which the process issued. (Act to amend the Lawrelating to Bankrupts, 6 Geo. IV., ch. 16, § 126.)

      Second. The discharge under the act to establish a uniform system of bankruptcy did not release the plaintiff in error, although the Supreme Court commissioner had no jurisdiction ; yet as the order appealed from was an application for á second alias mittimus, and the court held the discharge did not apply to the case, and was no answer to the application, the question in relation to the effect of the discharge in bankruptcy is presented by the'case. The jurisdiction of the commissioner is not important, except’as ap answer to the point which maybe made by the plaintiff in error, that there was a decision by a Competent tribunal, not vacated or reversed, and that such decision could not be inquired into on the application to the Court of Chancery. The principal question remains, namely, the effect of the discharge of the plaintiff in error under the bankrupt act. ‘
    If this contempt was criminal, the power of Congress to grant a dispensation for crimes might well be questioned. It is not necessary to' repeat what has been said under our first point. The act of Congress, commonly called the bankrupt act, does not embrace this case. The fourth section of the act declares the effect of the discharge in these words : — • “ And such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt which are provable under

      this act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever.” The only debts discharged are those provable under the act. If the fine imposed upon the plaintiff in error was not a debt provable under the act, the discharge does not present a bar. The fine imposed was not a debt, contract, or engagement. The course of practice in such cases is, as was done in this case, to order the money paid into court to abide the final result of the cause. A creditor’s bill had been filed, and an injunction obtained ; and for the wilful and voluntary breach of this injunction, the fine was imposed. Although the fine was imposed, in part, to indemnify the party, yet he had no claim to it until the result of the litigation should give it to him. It was to be paid into, court, and there remain, tp abide the final order of the court. It was not a debt provable under the act, for there was no one to prove it. In no way could it be proved as a debt.. It was no more a debt than a fine for assault and battery, or any other fine or punishment which may have been imposed for violated law. It is contended, howevér, that the fine being imposed, in part, to enforce a civil remedy, this takes away the criminal character of the contempt, and assimilates the proceeding to that class of cases where it is conceded that the process is merely to provide a remedy for the collection of money lmthose cases where an execution cannot issue. It is true, that, aside from any injury to the aggrieved party, the fine is limited to $ 250, and the imprisonment to six months. The contempt is as criminal when it impedes and obstructs civil remedies, as when it does not. The crime consists, in this case, in the wilful disobedience of the process or order of a court of record ; and the remedy to the party is also given .in such cases by statute. Where an actual loss or injury shall have been produced to any party by the misconduct alleged, a fine shall be imposed sufficient to indemnify, and to satisfy his costs and expenses, &c. (§ 22.) In all other cases, the fine shall not excéed $250. Courts of record are, by the statute, authorized, and had power without it, to enforce remedies of parties by inflicting this punishment. The cases; of attachments for nonpayment of costs, or for the nonpayment of any sum of money, nonperformance of an award where money is awarded, it is conceded, are merely remedies in nature of an execution. They require the performance of duties which may be beyond the ability of the party to discharge. This is not criminal. The crime consists in a wilful, inexcusable, and unatoned for disobedience of some lawful order or process. The definition implies the power to obey, hut makes the corpus delicti consist in what is the essence of all crime, malajides, —a deliberate design to obstruct the course of justice, and contemn the requirements of the process. Of this contempt the plaintiff in error was adjudged guilty, and a. fine was imposed to compensate the party.
    The cases cited, in the opinion of the Vice-Chancellor and Chancellor, sustain these views. The following cáses also illustrate our positions : — People v. Nevins, 1 Hill’s Rep. 154 ; Ex parte Parker, 3 Ves. 554 ; Rex v. Stokes, 1 Cowper, 1361 Atkyns, 262 ; Rex v. Pixley, Bunb. 202.

      Third. The voluntary part of the bankrupt act is unconstitutional. It is not intended to present any argument on this point. The case does not probably require it; and if it did, the wjiole subject has been so frequently discussed, that it is not supposed we can add any .thing to the labor .of others.
    The relator, or defendant in error, claims that the writ of error in this cause was sued out f°r the purposes of delay only, and therefore asks that the judgment be affirmed, with the highest rate of damages and costs.
   Mr. Chief-Justice TANEY

delivered the opinion of the court.

The court have considered this case, and have come to the conclusion that the judgment of the Court of the State of New York for the Correction of Errors must be affirmed. But there is. some difference among the justices who concur in affirming the judgment as to the principles, upon which the affirmance ought to be placed. No further opinion will, therefore, be delivered, than merely to pronounce the judgment of this court, affirming.'the judgment rendered by the state court.

Mr. Justice McLEAN. .

I dissent from the judgment of the court.,

Mr. Justice WAYNE..

I do not concur with the majority of the court, and think that the judgment of the Court for the Trial of Impeachments and for die Correction of Errors should be reversed.