United States v. Dashiel

Mr. Paschall, for Dashiel, defendant in error, now moved to dismiss the writ of error; the ground assigned in the motion having been that after judgment rendered 'there was an execution sued out by the plaintiff, a levy, and sale, and satisfaction.' In favor of the motion he argued: I. It is an old rule of the law, one not departed from either in modern times, that a levy on sufficient personal property operates, generally speaking, as an extinguishment of a judgment. So far back as Queen Elizabeth's time, Croke gives us the case of Mountney v. Andrews,1 where it is said, that 'to a scire facias on a judgment the defendant may plead execution on a fi. fa. for the same debt, without showing that the writ is returned;' implying, of course, that the levy was satisfaction. Lord Raymond, in a later day (Queen Anne's), gives us Clerk v. Withers,2 in which the marginal abstract is this: 'When the defendant's goods are seized of a fi. fa. the debt is discharged.' Nor is this ancient English law alone. It has been nowhere so explicitly declared, or so far carried out, as in the United States. 'When an officer, under an execution, has once levied upon the property of the defendant sufficient to satisfy the execution,' says the Supreme Court of New York, A.D. 1815,3 'he cannot make a second levy. This principle appears to be well settled.' Indeed, as that court remarks in the case cited, it had been previously held in New York,4 that a sheriff could not take security on a fi. fa., and still hold the execution in his hand, using it afterwards to enforce payment; and they say, 'According to the principle here recognized, it was immaterial whether the property first levied on was sufficient to satisfy the execution or not.' In 1825, we have in the same Supreme Court the case of Ex parte Lawrence,5 where the abstract is–'A levy on personal property sufficient to satisfy a fi. fa., is an extinguishment of the judgment on which it issued.' 'This,' say the court there, 'has been often held;' and they declared that the judgment therefore ceased by such levy to be a lien on real estate which it previously bound. Numerous other New York cases may be referred to for the same law;6 if, indeed, after a matter has been once solemnly adjudged, it is respectful to refer to cases affirming it with each reverting term.