Cunningham ex rel. Remington v. Offutt

6 F. Cas. 977, 5 D.C. 524, 5 Cranch 524

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: November 15, 1838
• Status: Published

Opinion

Cranch, C. J.

The execution of Cunningham, for the use of Remington v. Offutt, which was issued on the 17th of November, 1837, purports to be an original fieri facias ; not an alias. It contains no reference to any former execution, and is for the whole amount of the original judgment.

The execution of Linthicum v. Offutt, which was issued on the 1st of September, 1837, appears, also, to be an original fieri facias, and was delivered to the marshal on the same day, who levied it upon certain property of the defendant, Offutt, on the 11th of November, 1837.

The execution of Cunningham, for the use of Remington, was delivered to the marshal on the 18th of November, 1837, and levied on the same property. The execution of Linthicum, having first come to the hands of the marshal, must be first satisfied.

But it is said that Cunningham’s execution for the use of Remington was an alias fieri facias, the first having issued on the 27th of May, 1825, and delivered to the marshal on the same day, and levied upon a negro-boy, who was replevied out of the marshal’s hands by Remington, but afterwards delivered to Cunningham, at a certain price, in part satisfaction of his judgment, and that a balance of $69 was paid to Cunningham by Renting-ton, who took an assignment of the judgment to that amount, and issued the above-mentioned fieri facias on the 17th of November, 1837.

I think this makes no difference. The first execution was not levied upon this property on which Linthicum’s executionWvas levied; and although the personal property is bound by the delivery of the execution to the marshal, yet, if that execution be returned, it is fundus officio, and if a new fieri facias be issued, it binds the goods only from the time of its delivery to the marshal.

By the Statute of Frauds and Perjuries, 29 Car. 2, c. 3, § 16, “ no writ of fieri facias, or other writ of execution shall bind the property of the goods against whom such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff, or coroners to be executed.”

The fieri facias of Cunningham for the use of Remington, therefore, could not bind the property of the goods against which it was sued forth, but from the 18th of November, 1837, the day it was delivered to the marshal; whereas Linthicum’s fieri facias bound the property of the goods from the 1st of September, 1837.

I am, therefore, of opinion, that the sum of $69 which the marshal has retained, to abide the opinion of the Court upon this question, ought to be paid over to Mr. Linthieum.

MoRSell, J., concurred. Thruston, J., absent.