text:
Farmers' Loan Trust v. Waterman/Opinion of the Court

On the twenty-fourth of July, 1877, a decree was entered in a     suit pending in the court below for the foreclosure of      certain mortgages on the property of the Indianapolis,      Bloomington & Western Railway Company, directing a sale of      the mortgaged property and an application of the proceeds to      the payment, among others, of 'all such *  *  * claims and sums      of money as shall be hereinafter allowed by this court *  *  *      in preference to the liens of the hereinbefore-mentioned      mortgages or deeds of trust for debts due by said railway      company for work, labor, supplies, and material done and      furnished during the six months next preceding the first day      of December, 1874, *  *  * which payment for debts due as last      aforesaid for six months prior to December 1, 1874, shall be      made into court without prejudice to the right of the      Farmers' Loan & Trust Company to object to the same, and to      appeal from any order or orders which may be hereafter made      by the court directing the money so paid to be distributed to      the various claimants thereof.'

At the time this decree was made it was not known how much     the debts  for labor and supplies would amount to. That     matter had been referred, on the fourth of June before, to certain special      masters to take testimony and report, but their report had      not been filed. To meet this condition of the case the decree     further provided that on the delivery of the deed the      purchaser should pay into court enough of the purchase money      to satisfy any amount that might in the further progress of      the case be found to be owing. It was also specially provided     that the reference to the master, which had been made and      which was approved and continued, should 'in nowise abridge      or impair the right of any of the parties hereto to prosecute      an appeal from any order or orders of the court allowing or      disallowing said claims, or any part thereof, and declaring      the same to be prior and superior to said mortgage.'

The Farmers' Loan & Trust Company was the trustee of the     mortgages having the paramount mortgage liens on the      property.

On the sixteenth of November, 1877, the special masters filed     their report as to the labor and supply claims, allowing      1,163 separate claims which had been presented to them by      petition in accordance with the provisions of the order of      reference, and which, in their opinion, had been established      by the evidence. Of these claims only 14 were for sums     exceeding $5,000. All the rest, being 1,149 in number, were     in every instance for less than that amount. On the coming in     of the report numerous exceptions were filed by the trust      company. These exceptions remaining undisposed of and no sale     having been made under the decree, 'on motion of the Farmers'      Loan & Trust Company' it was, on the eighth of May, 1878, 'by      way of further directions for the execution of the decree *  *      * of date July 24, 1877, *  *  * considered by the court, and      ordered, adjudged, and decreed that the said original decree      be and the same is hereby amended and modified as follows: *      *  *

'(13) That the sale be made * *  * subject to *  *  * such *  *  *      claims and sums of money as are now under consideration by      and as shall be hereafter allowed by this court, *  *  * and      affirmed by the supreme court of the United States on appeal,      should an appeal be taken, in preference to liens of the      hereinbefore-mentioned mortgages or deeds of trust for debts      due by said railroad company for work and labor done, and supplies      and material furnished, *  *  * without prejudice to the right      of the Farmers' Loan & Trust Company to object to the same,      and to appeal from any order or orders which may be hereafter      made by the court in relation thereto; *  *  * and such back      pay, labor, and supply claims as shall be finally adjudged      against the property herein directed to be sold, after an      appeal so taken, shall be assumed by the purchaser or      purchasers, in addition to the amount of the purchase money      so bid. * *  * And the payment of the amount of any claims so      allowed, *  *  * shall not be required to be made at or prior      to the time of the delivery of the deed, but the said sale      shall be made subject to, and the purchaser or purchasers of      said property shall agree to pay off so much of, the said      claims or sums of money as shall be finally allowed in the      progress of this cause, on or after such appeal, and the same      shall be paid and discharged by said purchaser or purchasers      within six months after the entry of an order of this court,      upon a mandate of the supreme court, concerning matters so      appealed from being filed in this court, and the said deed      shall be delivered without payment of said claims or sums of      money, or any part thereof, upon the purchaser so      conditionally agreeing to pay so much and no more of such      claims and sums of money as may finally be allowed on such      appeal, and it shall be competent for the court to enforce      hereafter, by proper order or decree herein, or to be added      to the foot of this decree, any of the provisions or      conditions of this thirteenth article of this decree.'

On the thirtieth of October, 1878, the mortgaged property was     sold under the decree of July 24th, as thus modified, to      Austin Corbin, Giles E. Taintor, and Josiah B. Blossom,      'purchasing committee, in trust for certain bondholders under      the trusts expressed in certain agreements, dated December      20, 1875, and a supplement thereto, dated July 25, 1878,'      copies of which were attached to the report of the sale. These agreements had reference to a plan adopted by certain     of the stockholders, bondholders, and general creditors, for      the purchase of the property, and defining their respective      interests therein, if the purchase should be made.

The sale was confirmed by the court on the thirty-first of     March, 1879, upon the application of the purchasers, and the master      was directed to make and deliver to the purchasers a deed of      the property, subject, among other things, 'to *  *  * such *  *      * claims and sums of money as are now under consideration by      and as shall be hereafter allowed by the said court, *  *  * in      preference to the liens of the hereinbefore-mentioned      mortgages or deeds of trust, for debts due by said railroad      company for work and labor done and supplies and material      furnished during a period not exceeding the six months next      preceding the first day of December, 1874; *  *  * but nothing      herein contained shall be taken to prejudice the Farmers'      Loan & Trust Company, or the said Austin Corbin, Giles E.      Taintor, and Josiah B. Blossom, their successor or successors      and assigns, or any of them, to object to the same, or to      appeal from any order or orders which may be hereafter made      by the said court, or either of them, in relation thereto, to      the supreme court of the United States, which said *  *  * back      pay, labor, and supply claims *  *  * finally adjudged against      said property hereby conveyed, are hereby expressly assumed      by the said Austin Corbin, Giles E. Taintor, and Josiah B.      Blossom, purchasing committee, their successor or successors      and assigns, as and for a charge and lien upon the property      hereby conveyed, *  *  * prior and superior to any interest or      estate hereby vested in them, or any of them. * *  * '

After this deed was delivered a further reference was made to     take testimony and report as to certain special matters      connected with the claims before reported on. Upon the coming     in of the report under this last reference, exceptions were      filed by the trust company and the purchasers, and on the      thirty-first of October, 1881, the court, after a hearing,      decreed 'that said Austin Corbin, Giles E. Taintor, and      Josiah B. Blossom do, within 60 days, excluding Sundays, from      and after the date of the decree, pay to said several      intervening petitioners and claimants the several amounts set      opposite their respective names; that is to say, to Charles      F. Webb $270.' Then followed the names of all the other      separate claimants, with the amount due them respectively set      opposite.

From this decree of the thirty-first of October the trust     company and Corbin, Taintor, and Blossom took the present appeal,      which the appellees having claims less than $5,000 move to      dismiss as to them for want of jurisdiction. Those whose     claims exceed $5,000 have filed motions to affirm as to them,      on the ground that it is manifest the appeal was taken for      delay.

To our minds it is clear the trust company has no interest in the questions arising under this appeal. That company represented the bondholders for all the purposes of the foreclosure of the mortgages under which it was trustee, but the interest of the bondholders in the suit ended when the property was sold and the proceeds distributed. As the purchasers took the property subject to the lien, if any there was, of the back-pay claims, the bondholders, as bondholders, cannot in any manner be affected by the result of the proceedings to determine whether such lien exists, and if so, to what extent. All questions as to such matters are between the purchasers and intervening petitioners alone. The decree ordering a sale subject to the claims was entered on the motion of the trust company, and the appeal is in express terms confined to the order establishing the claims against the purchasers. If, by reason of the agreement under which the purchase was made by the purchasing committee, any of the bondholders secured by the mortgages to the trust company are entitled to share in the property, they are for all such purposes represented by the purchasing committee, and not by the mortgage trustee. The trust created by the mortgage was fully executed when the foreclosure was complete. After that the purchasing bondholders became purchasers of the mortgaged property, and their rights are to be determined accordingly. Neither is it of any importance that in the decree of sale as modified, as well as in that originally entered, a right of appeal by the trust company was expressly reserved. Only parties to a decree can appeal. If a party to the suit is in no manner affected by what is decreed, he cannot be said to be a party to the decree. A reservation of the right to appeal has no effect if there is no decree from which an appeal such as has been reserved will lie. In the present case, as has already been seen, the several claimants or intervenors and the purchasing committee were the only parties to the suit affected by the decree of October 31st. The purchasing committee became parties by their purchase to the extent that was necessary to protect their rights in the property purchased against any further orders to be made in the execution of the decree under which they bought. The trust company, by consenting to the decree ordering a sale subject to the back-pay and supply liens, in effect voluntarily abandoned that part of the litigation, and left it to be carried on thereafter between the several claimants and the purchasers alone. Neither the trust company nor those it in equity represents can gain or lose by either a reversal or affirmance of the decree appealed from.

Our jurisdiction, therefore, depends on the case as it stands between the purchasing committee and the several back-pay claimants. As we have shown at the present term in Ex parte Baltimore & O. R. Co. ante, 35, if distinct causes of action in favor of distinct parties, though growing out of the same transaction, are joined in one suit, and distinct decrees are rendered in favor of the several parties, these decrees cannot be joined to give us jurisdiction; but if the controversy is about a matter in which several parties are interested collectively under a common title, and in the decree, after establishing the common right, a division is made among the claimants according to their respective interests, this separation of the decree into parts will not prevent an appeal.

We are satisfied the present case comes under the first division of this rule. There is a question involved common to all the intervenors, that is to say, whether back-pay and supply claims of any kind are to be paid by the purchasers; but if that is settled in favor of the claimants it will still have to be determined whether each one of the separate claimants has a claim of that kind. In determining this question each claim will depend on its own facts. A recovery by one claimant will not necessarily involve a recovery by another. While the rights of all depend on establishing a liability of the purchasers for the payment of debts of a particular kind, no one can recover unless he shows that there is owing to him individually a debt of that kind. There are, therefore, necessarily in the case as many separate and distinct controversies as there are separate claimants and intervenors. The purchasers have the right to contest each claim separately. They stand in the same relation to the several claimants that the ship-owner did in Oliver v. Alexander, 6 Pet. 143, to the seamen, or the alleged fraudulent grantee in Seaver v. Bigelows, 5 Wall. 208, to the judgment creditors. The several intervenors do not, as in The Connemara, 103 U.S. 754, claim under one and the same title, and it is material to the purchasers how much is allowed to each the every one, for the amount of the recovery is not determined by any fixed sum, but by the aggregate of all the separate sums allowed the several claimants individually. The amount of the recovery by one is not affected in any manner by what is allowed to another. Clearly, therefore, distinct causes of action in favor of distinct parties have been joined in the same suit, and distinct decrees rendered in favor of the distinct parties. This is not only the form of the decree, but the substance.

There is no question here of a fund for distribution. The purchasing committee bought the road subject to the liens of the various back-pay and supply claimants, if any such liens existed. The claimants are seeking to establish and enforce their respective liens. They, in effect, join in one suit for that purpose, but both their claims and decrees are separate and distinct.

It follows that the motion to dismiss must be granted, and it is so ordered.

The question involved in the appeals from the decrees for more than $5,000 are not such as we are willing to consider on a motion to affirm. The motion for an affirmance is therefore overruled.


text: Talk:Farmers' Loan Trust v. Waterman/Opinion of the Court

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text:
Fink v. O'Neil

This is a bill in equity filed by the appellee praying for a perpetual injunction to restrain the appellant, then United States marshal for the district, from further proceeding under a ''fi. fa''., issued upon a judgment rendered in favor of the United States in the district court for the eastern district of Wisconsin, against the appellee and others, and which had been levied on real estate alleged to be the homestead of the appellee, and exempt under the laws of that state from sale on execution. The premises levied on are described in the bill as 40 acres of land, with a dwelling-house and appurtenances thereon, occupied by the appellee as a residence for himself and family, consisting of his wife and seven children, the same being used for agricultural purposes, not included in any town, city, or village plat, and alleged to be of the value of $6,000 and upwards; and it is averred that the cause of action upon which the judgment was rendered was not for any debt or liability contracted prior to January 1, 1849. To this bill there was filed a general demurrer, for want of equity, which being overruled, and the appellant declining to answer or plead, a decree was rendered granting the relief prayed for, from which this appeal is prosecuted. The provision of the statute of Wisconsin on the subject of homestead exemptions, the benefit of which was secured to the appellee by the decree appealed from, is as follows:

'A homestead to be selected by the owner thereof, consisting     when not included in any village or city, of any quantity of      land, not exceeding 40 acres, used for agricultural purposes,      and when included in any city or village, of a quantity of      land not exceeding one-fourth of an acre, and the      dwelling-house thereon and its appurtenances, owned and      occupied by any resident of this state, shall be exempt from      seizure or sale on execution, from the lien of every judgment, and from liability in any form for the debts of      such owner, except laborers', mechanics', and purchase-money      liens, and mortgages lawfully executed, and taxes lawfully      assessed, and except as otherwise specially provided in these      statutes,' etc. Rev. St. Wis. 1878, p. 783, c. 130, § 2983.

Asst. Atty. Gen. Maury, for appellant.

No counsel for appellee.

[Argument of Counsel from pages 273-274 intentionally omitted]

MATTHEWS, J.

title: Fink v. O'Neil


text: Talk:Fink v. O'Neil

title: Talk:Fink v. O'Neil


text:
Fink v. O'Neil/Opinion of the Court

This statutory provision was enacted in express compliance with a constitutional injunction, wherein it was declared, in the seventeenth section of the bill of rights, that 'the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws.' Phelps v. Rooney, 9 Wis. 70-83. And it has been the constant policy of the state in this legislation, as construed by many decisions of its supreme court, to favor by liberal interpretations the exemptions in favor of the debtor. 'For it cannot be denied,' says that court in Hanson v. Edgar, 34 Wis. 653-657, 'that in all the enactments found in our statute books in regard to homestead exemption, the most sedulous care is manifest to secure the homestead to the debtor and to his wife and family against all debts not expressly charged upon it.'

We have found no case in which the question has been raised, or where there has been any expression of judicial opinion, whether the exemption would prevail or not, as to judgments in favor of the state; but we do not doubt, from the language of the constitutional and statutory provisions, and the rules of construction followed in other cases, that it would be held by its courts, if the question should be directly made, that the state, except as to taxes, which are expressly excepted, would be bound by the exemption.

In the case of Doe v. Deavors, 11 Ga. 79, it was decided by the supreme court of Georgia, in 1852, that the state was bound by acts of the legislature exempting certain articles of personal property from levy and sale for debts, for the benefit of the wife and children of the debtor, so that they could not be seized and sold under execution for the payment of taxes. The court said, page 89:

'These laws are founded in a humane regard to the women and     children of families. The preamble to the act of 1822     announces the grounds on which the legislature acted. 'Whereas,' (is its language,) 'it does not comport with     justice and expediency to deprive innocent and helpless women      and children of the means of subsistence, be it therefore      enacted,' etc. *  *  * In our judgment, the state falls within the operation of a public law, passed for the      benefit of the poor, and the state is within

Mr. Thompson, in his Treatise on Homesteads and Exemptions, (section 386,) says:

'In many of the states this question is determined by the     express provisions of statutes, which declare, in various      terms, that nothing shall be exempt from execution where the      debt other than public taxes, is due the state; or where the      debt is for public taxes legally assessed upon the homestead      or other property; or where the demand is for a public wrong      committed, punished by fine. But where the question has     arisen, in the silence of statutes, the highest courts of the      states, with two exceptions, have held otherwise.'

The case of Com. v. Cook, 8 Bush, 220, which is one of the exceptions referred to, is shown, however, to have been materially qualified by the decision in Com. v. Lay, 12 Bush, 283. That of Brooks v. State, 54 Ga. 36, turned on the point that the exemption claimed operated retrospectively, and was disallowed on the authority of Gunn v. Barry, 15 Wall. 610. So that in point of fact the decisions of state courts upon the point are practically unanimous.

It is said, however, that the laws of the state creating these exemptions are not laws for the United States; and this is certainly true, unless they have been made such by congress itself. This has not been an open question in this court since the decision in the cases of Wayman v. Southard, 10 Wheat. 1, and of the U.S. Bank v. Halstead, 10 Wheat. 51. Mr Justice THOMPSON, delivering the opinion of the court in the latter case, said:

'An officer of the United States cannot, in the discharge of     his duty, be governed and controlled by state laws, any      further than such laws have been adopted and sanctioned by      the legislative authority of the United States. And he does     not, in such case, act under the authority of the state law,      but under that of the United States, which adopts such law. An execution is the fruit and end of the suit, and is very     aptly called the life of the law. The suit does not terminate     with the judgment; and all proceedings on the execution are      proceedings in the suit,' etc.

In Wayman v. Southard, 10 Wheat. 49, Chief Justice MARSHALL had said that the proposition was 'one of those political axioms, an attempt to demonstrate which would be a waste of argument not to be excused.'

The question therefore is, whether the United States, by an appropriate legislative act, has adopted the laws of Wisconsin exempting homesteads from execution, and, if at all, whether they apply in cases of executions upon judgments in favor of the United States.

'The party recovering a judgment in any common-law cause in     any circuit or district court, shall be entitled to similar      remedies upon the same, by execution or otherwise, to reach      the property of the judgment debtor, as are now provided in      like causes by the laws of the state in which such court is      held, or by any such laws hereafter enacted which may be      adopted by general rules of such circuit or district courts;      and such courts may, from time to time, by general rules,      adopt such state laws as may hereafter be in force in such      state in relation to remedies upon judgments as aforesaid, by      execution or otherwise.'

This provision, in its present form, has been in force since June 1, 1872, and is part of the sixth section of the act 'to further the administration of justice,' approved on that date. 17 St. at Large, 196. It is the result of a policy that originated with the organization of our judicial system. The fourteenth section of the judiciary act of 1789 (1 St. at Large, 81) provided that the courts of the United States should have 'power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law;' and this was held to embrace executions upon judgments. Wayman v. Southard, 10 Wheat. 1. But simultaneously with the judiciary act, September 29, 1789, was passed the first 'Act to regulate processes in the courts of the United States,' in which it was enacted 'that until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style and mode of process and rates of fees, except fees to judges in the circuit and district courts in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same.' This act was temporary, and expired by its own limitation at the end of the next session of congress. The act of May 8, 1792, provided that the forms of writs, executions, and other process, and the forms and modes of proceeding in suits at common law, should continue to be the same as authorized by the act of 1789, 'subject, however, to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court shall think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same.' 1 St. at Large, 275. This legislation came under review in this court in the cases of Wayman v. Southard and U.S. Bank v. Halstead, in the latter of which it is said, (10 Wheat. 60:)

'The general policy of all the laws on this subject is very     apparent. It was intended to adopt and conform to the state     process and proceedings as the general rule, but under such      guards and checks as might be necessary to insure the due      exercise of the powers of the courts of the United States. They have authority, therefore, from time to time, to alter     the process in such manner as they shall deem expedient, and      likewise to make additions thereto, which necessarily implies      a power to enlarge the effect and operation of the process.'

This discretionary power in the courts of the United States was restricted by the act of May 19, 1828, (4 St. at Large, 278,) so that thereafter writs of execution and other final process issued on judgments rendered in any of the courts of the United States, and the proceedings thereupon, should be the same, except their style, in each state respectively, as were then used in the courts of such state: provided, however, that it should be in the power of the courts, if they saw fit in their discretion, by rule of court, so far to alter final process in said courts as to conform the same to any change which might be adopted by the legislatures of the respective states for the state courts. It will be seen from this provision that it was thereafter prohibited to the courts of the United States either to adopt or recognize any form of execution, or give any effect to it, except such as was, at the time of the passage of the act, or had subsequently become at the time of their adoption, a writ authorized by the laws of the state. The same provision has ever since been continued in force, and is now embodied in section 916 of the Revised Statutes, already quoted.

In Beers v. Haughton, 9 Pet. 329, which was governed by the act of 1828, it was held that 'the words, 'the proceedings on the writs of execution and other final process,' must, from their very import, be construed to include all the laws which regulate the rights, duties, and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution debtor, and also all the exemptions from arrest or imprisonment under such process created by those laws.'

It is further to be observed that no distinction is made, in any of these statutes on the subject, between executions on judgments in favor of private parties and on those in favor of the United States. And as there is no provision as to the effect of executions at all, except as contained in this legislation, it follows necessarily that the exemptions from levy and sale, under executions of one class, apply equally to all, including those on judgments recovered by the United States. The general power to issue process, originally conferred by section 14 of the judiciary act of 1789, which no appears as section 716, Rev. St., as being in pari materia with that contained in section 916, must be construed as subject to the same limitations, especially as the general power is confined in express terms to writs not specifically provided for by statute, and hence, ex vi termini, embraces none included in the subsequent section. Besides, as was said by Chief Justice MARSHALL, in Wayman v. Southard, 10 Wheat. 1-24, 'this section provides singly for issuing the writ, and prescribes no rule for the conduct of the officer while obeying its mandate.'

As the statute of Wisconsin, exempting homesteads from levy and sale upon executions, was in force at the time the act of congress of June 1, 1872, took effect, and has remained so continuously from that time, it also follows that the exemption has thereby become a law of the United States within that state, and applies to executions issued upon judgments in civil causes recovered in their courts in their own name and behalf, equally with those upon judgments rendered in favor of private parties. Laws of Wis. 1848, pp. 40-41; Rev. St. Wis. 1871, § 23, p. 1548. This conclusion cannot be avoided by the consideration which has been urged upon us, that the process acts do not limit the sovereign rights of the United States, upon the principle that the sovereign is not bound by such laws, unless he is expressly named. These laws are the expression of the sovereign will on the subject, and are conclusive upon the judicial and executive officers to whom they are addressed; and as they forbid the issue of an execution in every case, except subject to the limitations which they mention, and as there is no authority to issue an execution in any case whatever, except as conferred by them, the sovereign right invoked is left without the means of vindication. The United States cannot enforce the collection of a debt from an unwilling debtor except by judicial process. They must bring a suit and obtain a judgment. To reap the fruit of that judgment they must cause an execution to issue. The courts have no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department, for they can exercise no jurisdiction except as the law confers and limits it. And if the laws in question do not permit an execution to issue upon a judgment in favor of the United States, except subject to the exemptions which apply to citizens, there are no others which confer authority to issue any execution at all. For, as was said by Mr. Justice DANIEL, in Cary v. Curtis, 3 How. 236-245, 'the courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law.' This objection is also met expressly by the decision of this court in the case of U.S. v. Knight, 14 Pet. 301. It was there decided that the act of May 19, 1828, gives the debtors imprisoned under executions from the courts of the United States, at the suit of the United States, the privilege of jail limits in the several states, as they were fixed by the laws of the several states at the date of that act. It was there objected, as here, that the provision of the statute did not embrace executions issued on judgments rendered in favor of the United States, upon the ground that the United States are never to be considered as embraced in any statute unless expressly named. Mr. Justice BARBOUR delivered the opinion of the court, and said:

'The words of this section being 'that writs of execution and     other final process issued on judgments and decress rendered      in any of the courts of the United States,' it is obvious      that the language is sufficiently comprehensive to embrace      them, unless they are to be excluded by a construction      founded upon the principle just stated.' Referring to the      maxim nullum tempus occurrit regi, he says it rests on the      ground that no laches shall be imputed to the sovereign, but      he adds: 'Not upon any notion of prerogative; for even in      England, where the doctrine is stated under the head of      prerogative, this, in effect, means nothing more than that      this exception is made from the statute for the public good;      and the king represents the notion. The real ground is a     great principle of public policy, which belongs alike to all      governments, that the public interest should not be      prejudiced by the negligence of public officers, to whose      care they are confided. Without undertaking to lay down any     general rule as applicable to cases of this kind, we feel      satisfied that when, as in this case, a statute, which      proposes only to regulate the mode of proceeding in suits,      does not divest the public of any right, does not violate any      principle of public policy; but, on the contrary, makes      provisions, in accordance with the policy which the      government has indicated by many acts of previous      legislation, to conform to state laws, in giving to persons      imprisoned under their execution the privilege of jail      limits; we shall best carry into effect the legislative      intent, by construing the executions at the suit of the      United States to be embraced within the act of 1828.'

The same line of reasoning was adopted by this court in the case of Green v. U.S. 9 Wall. 655. It was there held that the act of July 2, 1864, which enacts that in courts of the United States there shall be no exclusion of any witness in civil actions, 'because he is a party to or interested in the issue tried;' and the amendatory act of March 3, 1865, making certain exceptions to the rule, apply to civil actions in which the United States are a party as well as to those between private persons. It was argued by the attorney general that the statutes were meant to give both parties an equal standing in court in respect to evidence; that the United States not being able to testify, a party opposed to them should not be allowed to do so either; and that, independently of this, it was a rule of construction that 'the king is not bound by any act of parliament, unless he be named therein by special and particular words.' Mr. Justice BRADLEY, who delivered the opinion of the court, replying to this argument, said:

'It is urged that the government is not bound by a law unless     expressly named. We do not see why this rule of construction     should apply to acts of legislation which lay down general      rules of procedure in civil actions. The very fact that it is     comfined to civil actions would seem to show that congress      intended it to apply to actions in which the government is a      party, as well as those between private parties. For the     United States is a necessary party in all criminal actions      which are excluded ex vi termini; and if it had been the      intent to exclude all other actions in which the government      is a party, it would have been more natural and more accurate      to have expressly confined the law to actions in which the      government is not a party, instead of confining it to civil      actions. It would then have corresponded precisely with such     intent. Expressed as it is, the intent seems to embrace,     instead of excluding, civil actions in which the government      is a party. Nothing adverse to this view can be gathered from     the exceptions made in the amendment passed in 1865.'

And although it has been decided by the highest judicial tribunals in England, (Feather v. Queen, 6 Best & S. 257; Dixon v. London Small Arms Co. L. R. 1 App. Cas. 632,) that the sovereign is entitled to the use of a patented process or invention without compensation to the patentee, because the privilege granted by the letters patent is granted against the subjects only, and not against the crown, a contrary doctrine was held by this court in James v. Campbell, 104 U.S. 356, to prevail in this country. Mr. Justice BRADLEY, delivering the opinion of the court in that case, said:

'The United States has no such prerogative as that which is     claimed by the sovereigns of England by which it can reserve      to itself, either expressly or by implication, a superior      dominion and use, in that which it grants by letters patent      to those who entitled themselves to such grants. The     government of the United States, as well as the citizen, is      subject to the constitution; and when it grants a patent, the      grantee is entitled to it as a matter of right, and does not      receive it, as was originally supposed to be the case in      England, as a matter of grace and favor.'

It is true that in the case of U.S. v. Herron, 20 Wall. 251, it was decided that a debt due to the United States is not barred by the debtor's discharge with certificate under the bankrupt act of 1867; but in that case Mr. Justice CLIFFORD took pains, by a careful collation of numerous provisions of the statute, to show that the words 'creditor or creditors,' as contained in the act, did not include the United States, adopting and extending the definition by Mr. Justice BLACKBURN, in Woods v. De Mattos, 3 Hurl. & C. 995, because used in the sense of persons having a claim which can be proved under the bankruptcy, and not required by the act to be paid in full in preference of all others. But the bankrupt act furnished clear evidence of the policy of congress in reference to exemptions of property from sale for the payment of debts, by excepting from its operation personal property, necessary to the use of the family, to the amount of $500, and such other property as was exempt from execution by the laws of the United States and of the state of the debtor's domicile. Rev. St. § 5045. And congress, since May 20, 1862, (12 St. at Large, 392,) when it passed the first act providing for the acquisition of homesteads for actual settlers upon the public lands, made their exemption from sale on execution a permanent part of a national policy, by declaring that lands so acquired should not 'in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.' Rev. St. § 2296; Seymour v. Sanders, 3 Dill. 437; Russell v. Lowth, 21 Minn. 167.

If a contrary construction to the process acts should be given, on the ground that they do not include the United States, which, although a litigant, continues nevertheless to exercise the prerogatives of a sovereign, it would follow that they might resort to any writ known to the common law, however antiquated or obsolete, and in defiance of the progress of enlightened legislation on that subject, revive all the hardships of imprisonment for debt, even without the liberty of local statutory jail limits. But that this is not within the meaning of these acts of congress we have positive and plenary proof in section 1042 of the Revised Statutes. This was section 14 of the act of June 1, 1872, (17 St. at Large, 198.) It provides that 'when a poor convict, sentenced by any court of the United States to pay fine, or fine and cost, whether with or without imprisonment, has been confined in prison 30 days solely for the non-payment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding $20 in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him' an oath, the form of which is set out, in which he swears that he has not any property, real or personal, to the amount of $20, except such as is by law exempt from being taken on civil precept for debt by the laws of the state, where the oath is administered, and that he has no property in any way conveyed or concealed, or in any way disposed of, for his future use or benefit. 'And thereupon,' the statute proceeds, 'such convict shall be discharged,' etc. This section is repeated as section 5296, Rev. St., under the title, 'Remission of Fines, Penalties, and Forfeitures.'

Nothing can be more clear than this, as a recognition by congress, that in case of executions upon judgments in civil actions the United States are subject to the same exemptions as apply to private persons by the law of the state, in which the property levied on is found; and that, by this provision in favor of poor convicts, it was intended, even in cases of sentences for fines for criminal offenses against the laws of the United States that the execution against property for its collection should be subjected to the same exemptions as in civil cases.

In The Magdalen College Case, 11 Coke, 66b, Lord, COKE, referring to Lord Berkley's Case, Plowd. 246, declares that it was there held that the king was bound by the statute De donis, 13 Edw. I., because, for other reasons, 'it was an act of preservation of the possession of noblemen, gentlemen, and others,' and 'the said act,' he continues, 'shall not bind the king only, where he took an estate in his natural capacity, as to him and the heirs male of his body, but also when he claims an inheritance as king by his prerogative.' By parity of reasoning, based on the declared public policy of states, where the people are the sovereign, laws which are acts of preservation of the home of the family, exclude the supposition of any adverse public interest, because none can be thought hostile to that, and the case is brought within the humane exception that identifies the public good with the private right, and declares 'that general statutes, which provide necessary and profitable remedy for the maintenance of religion, the advancement of good learning and for the relief of the poor, shall be extended generally according to their words;' for civilization has no promise that is not nourished in the bosom of the secure and well-ordered household.

The decree of the circuit court is affirmed.

title: Fink v. O'Neil/Opinion of the Court


text: Talk:Fink v. O'Neil/Opinion of the Court


text:
Miltenberger v. Logansport

[Syllabus from pages 286-288 intentionally omitted]

Charles M. Osborne, for appellants.

J. G. Williams and W. H. H. Miller, for claimants.

BLATCHFORD, J.

title: Miltenberger v. Logansport


text: Talk:Miltenberger v. Logansport

title: Talk:Miltenberger v. Logansport