BOYLE V. ZACHARIE, 31 U. S. 648 (1832)

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U.S. Supreme Court

Boyle v. Zacharie, 31 U.S. 6 Pet. 648 648 (1832)

Boyle v. Zacharie

31 U.S. (6 Pet.) 648


A writ of error will not lie to a circuit court of the United States to revise its decision in refusing to grant a writ of venditioni exponas, issued on a judgment obtained in that court. A writ of error does not lie in such a case.

All motions to quash executions are addressed to the sound discretion of the court, and as a summary relief which the court is not compellable to allow. The party is deprived of no right by the refusal, and he is at full liberty to redress his grievance by writ of error or audita querela or other remedy known to the common law. The refusal to quash is not, in the sense of the common law, a judgment, much less a final judgment. It is a mere interlocutory order. Even at common law, error only lies from a final judgment, and by the express provisions of the Judiciary Act of 1789, a writ of error lies to this Court only in cases of final judgments.

The acts of Maryland regulating the proceedings on injunctions and other chancery proceedings and giving certain effects to them in courts of law are of no force in relation to the courts of the United States. The chancery jurisdiction given by the Constitution and laws of the United States is the same in all the states of the Union, and the rule of decision is the same in all. In the exercise of that jurisdiction, the courts of the United States are not governed by the state practice, but the Act of Congress of 1792, chap. 36, has provided that the modes of proceeding in equity suits shall be according to the principles, rules, and usages which belong to courts of equity, as contradistinguished from courts of law. And the settled doctrine of this Court is that the remedies in equity are to be administered not according to the state practice, but according to the practice of courts of equity in the parent country, as contradistinguished from courts of law, subject, of course, to the provisions of the acts of Congress and to such alterations and rules as in the exercise of the powers delegated by those acts the courts of the United States may from time to time prescribe.

In respect to suits at common law, it is true that the laws of the United States have adopted the forms of writs and executions and other process, and the modes of proceeding, authorized and used under the state laws, subject, however, to such alterations and additions as may from time to time be made by the courts of the United States. But writs of execution issuing from the courts of the United States in virtue of those provisions are not controlled or controllable in their general operation or effect by, any collateral regulations and restrictions which the state laws have imposed upon the state courts to govern

them in the actual use, suspension, or superseding of them. Such regulations and restrictions are exclusively addressed to the state tribunals, and have no efficacy in the courts of the United States unless adopted by them.

The cases of @ 11 U. S. 564; Wayman v. Southard, 10 Wheat. 1, and Bank of the United States v. Halstead, 10 Wheat. 51, cited.

Page 31 U. S. 649

The facts of this case are stated, in part, in the preceding equity case and in the opinion of the Court, delivered by MR. JUSTICE STORY.

The defendants in error, citizens of Louisiana and merchants of New Orleans, instituted a suit in the circuit court against Hugh Boyle of Baltimore for the amount which they had been obliged to pay as his securities in an attachment against his property at New Orleans. The action was brought on 23 December, 1819.

Mr. Boyle appeared to the suit at May term, 1820, and filed a plea of nonassumpsit, and issue was joined; the cause was then continued to November term, 1820, and then to May term, 1821, when the defendant withdrew his plea and confessed judgment for the damages in the declaration and costs, these damages to be released upon the payment of $3,113.80, with interest from 15 November, 1819, and $17.25 costs, "subject to the legal operation of the defendant's discharge under the insolvent laws of Maryland." On 8 October, 1822, a scire facias was issued to revive the judgment, and a fiat was entered on 7 November, 1823, and for $16.75 costs on fiat.

A fieri facias, to lie, was issued to December term, 1824, and renewed from time to time until 12 December, 1827, when it was taken out of the office and delivered to the marshal, and was by him, on 31 March, 1828, levied on the ship called The General Smith, and so by him returned to May term, 1828, in these words: "Levied as per schedule on 31 March, 1828. Injunction issued on 8 April, 1828."

On 7 April, 1828, the plaintiff in error filed his bill of complaint on the equity side of the circuit court against Zacharie & Turner to stay proceedings at law upon the judgment, and a writ of injunction was granted by the circuit judge and issued on the 8th day of the same month.

The bill which had been filed by the plaintiff in error on the equity side of the court having been dismissed, the attorney for the plaintiffs, on 10 June, 1829, gave an order to the clerk to issue a writ of venditioni exponas, which was issued on 29 August, 1829, and delivered to the marshal, who

Page 31 U. S. 650

made a return thereof to the December term, 1829, that he had received the amount of the execution from the defendant, and had it ready to bring into court.

The defendant at the same term made a motion to quash the writ of venditioni exponas and filed the following reasons in support of his motion.

1. That the judge who granted the said writ of injunction required the defendant, Hugh Boyle, to execute an injunction bond or obligation before the said writ was issued. The bond was in the common form.

2. And also the one hundredth rule of the court, adopted, with others, by the Circuit Court of the United States for the Fourth Circuit, in and for the District of Maryland, passed and adopted by the court as the rules for the orderly conducting of business in the court in cases at common law and to regulate the practice in the court at November term 1802.

One Hundredth Rule.

"Writs of capias ad satisfaciendum, fieri facias (or attachment by way of execution), as authorized by the act of assembly of this state, may issue at the option of the party in whose favor any judgment shall be rendered for the recovery of any debt or damages, but only one execution shall be served returnable to the same court unless sufficient money shall not be levied to satisfy the judgment, in which case the capias ad satisfaciendum may be afterwards served for the residue, which shall be endorsed thereon, and the costs of the writ not served shall be paid by the party issuing it."

And also the Act of the General Assembly of Maryland, passed at November session, 1799, chapter 79, entitled "An act to prevent unnecessary delay and expense, and for the further advancement of justice in the court of chancery," and also the Act of the General Assembly of Maryland entitled "An act for the ease of the inhabitants in examining evidences relating to the bounds of lands, and in the manner of obtaining injunctions," passed at October session, 1723, chapter 8.

And also appealed to the knowledge of the court that according to the uniform and immemorial practice in the State of Maryland with regard to the state courts, whenever a writ of fieri facias had been levied and the proceedings were stayed by injunction before the day of sale, the officer who had levied the writ of fieri facias delivered up the property seized by

Page 31 U. S. 651

him to the defendant at law upon the service upon the said officer of notice of the writ of injunction.

The court overruled the motion and ordered and directed the marshal to bring into court the money mentioned in his return, and the cause was removed to this court by writ of error.

Page 31 U. S. 654

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