Prevost v. Gorrell

19 F. Cas. 1296, 25 Pitts L.J. 125

Opinion

THE COURT

(McKENNAN, Circuit Judge, and CADWALADER. District Judge).

This is a new question of practice, and is not perfectly clear. It depends upon what is meant by "similar remedies” in section 915 of the Revised Statutes. The act from which that clause is taken was passed in 1S72, while section 985 is taken from an act passed in 1820. As by the latter act all writs of execution may be executed throughout the state (where the state is divided into several districts), it would seem more reasonable to suppose that the clause of the subsequent act of 1S72 was meant to give to the plaintiff the additional advantage of the writ of attachment (whether as a writ of execution or not) where it had not before been enjoyed, in which case the meaning of the statute would be that the plaintiff was entitled to similar writs of attachment as in the state court, but not necessarily to a completely similar use of the writ, as is contended here. This we decide to be the meaning of the statute where, as here, the plaintiff has a complete remedy under section 915, combined with section 985, without discussing the question of its meaning where the latter section does not apply, as where the districts are in different states.

Under this view the plaintiff's lien on the defendant’s real estate in the Eastern district depends, not upon the certified copy he has filed here, but upon the original judgment he has obtained in the Western district, and goes back as to all real estate situated in this district to that date; for the right of lien depends upon the right of execution; and, as all writs of execution, wbieh the plaintiff had a right to issue on his judgment, might “run and be executed in all parts of. the state.” by section 985, this lien was equally operative from the same date upon real estate situated in all parts of the state. Masr singill v. Downs, 7 How. [4S U. S.] 768.