Smith v. Bank of Columbia

22 F. Cas. 451, 4 D.C. 143, 4 Cranch 143

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1831
• Status: Published

Opinion

CRAnch, C. J.,

after stating the case, delivered the opinion of the Court:

This cause is set for hearing, by consent, on bill, answers, general replication, and exhibits.

It is not important, in the present case, to decide whether the lands of Bunnell and Robertson were bound by the order of the president of the Bank of Columbia, to the clerk, to issue the executions under the 14th section of the charter of that.bank, or by the issuing of the executions; because they were, on the 23d of January, 1822, delivered to the marshal to be executed, and the deed under which Mr. Smith claims the lot No. 46, bears date nine days afterwards, namely, on the 1st of February, 1822; and there is no question that they bound the land and goods from the time of such delivery, if they bound them at all.

But the 14th section of the original charter of the Bank of Columbia, which was the only act under which the clerk of the Court had authority to issue executions upon the order of the president of the bank without a previous judgment of the Court, was repealed by the 8th section of the Act of Congress of the 2d of March, 1821, [3 Stat. at Large, 618,] which has this proviso : “ That the said 14th section shall remain in full force and effect in relation to all debts contracted with the said bank previous to the passing of this Act.”

Two of the notes, upon which two of these executions were issued, bear date after the passing of that act, namely, on the 8th and 22d of March, 1821. These two executions, therefore, were absolutely void, because the clerk had no authority whatever to issue thpm; and the two subsequent executions,' issued upon the same notes, were equally void, for the same reason.

It has indeed been contended that these notes were given for a debt previously due to the bank, and therefore to be still considered as evidence of the old debt. But when these notes were discounted by the bank, the proceeds were applied by the bank to the extinguishment of the old debt; and it is presumed that the bank will not admit that the makers of those notes had a right to plead the statute of limitations to these new notes. By taking the new notes, the bank has relinquished the right to the summary remedy annexed to the old debt. But there is no evidence, in this cause, that these notes were given fot a debt due before the 2d of March, 1821. The question therefore cannot be made in this case.

The notes, upon which the other two executions were issued, bear date before the 2d of March, 1821, namely, on the 1st and 22d of February, 1821, and were therefore subject to the summary remedy.

But the writs of fieri facias, issued upon these notes, were returned executed; that is, levied upon property valued by the marshal at $4,000. This was a complete discharge of the debt, as to Bunnell and Robertson, unless, by an actual sale of the property seized, the value should appear to be insufficient to discharge the debt. The plaintiff cannot have a new execution; and the marshal is liable to the plaintiff, to the amount of the debt, or to the value of the property as returned by him, if it be less than the debt, unless he has been prevented by the plaintiff from proceeding to complete the execution ; or the execution be quashed by the Court.

The law to that effect is clearly laid down, in the case of Clerk v. Withers, 2 Lord Raym. 1072, in error to the Court of Common Pleas, and affirmed by the unanimous opinion of the Court, after argument seriatim by all the judges. See also the following authorities, some of which were cited by the judges in their arguments in that case.

Rook v. Wilmot, Cro. Eliz. 208, 209; Atkinson v. Atkinson, Cro. Eliz. 390; Langdon v. Wallis, Lut. 588; Mountney v. Andrews, Cro. Eliz. 237; Dike v. Mercer, 2 Shower, 394; Ayre v. Aden, Cro. Jac. 73; Thoroughgood’s case, Noy, 73; Cleve v. Veer, Cro. Car. 459; Wilbraham v. Snow, 2 Saund. 47, note 2, p. 47, m; S. C. 1 Lev. 282; Harrison v. Bowden, Sid. 29; Mildmay v. Smith, 2 Saund. 343; Slie v. Finch, 2 Roll. Rep. 57; S. C. Cro. Jac. 514; Coriton v. Thomas, Cro. Jac. 566.

It is averred in the answer, that the lot 112 had, before the issuing of the first, executions, been conveyed by Bunnell and Robertson to Richard Smith, in trust, to secure a debt of $2,000 to the Bank of the United States, and had, by him, been sold under that trust, before the defendants’ resorting to the other property of Bunnell and Robertson, namely, part of lot No. 46, had been enjoined, &c. But the answer, in this respect, not being responsive to the bill, is not evidence of that fact; and, if it were, still the return of the marshal, being matter of record, would be conclusive. There must have been a sale, to ascertain the value of the lot 112, or the marshal must have amended his return ; or the executions must have been quashed before new executions could be lawfully issued, if. they could be issued at all, without a new affidavit-and order by the president of the bank.

Upon one of those executions, namely, that which was issued upon the note of the 1st of February, 1821, the marshal returned “ levied as per schedule in No. 250, and countermanded by cashier,” meaning the plaintiff’s cashier.

But the plaintiffs, in that case, had no authority to countermand the writ after it was executed, nor had the clerk any authority to issue a new writ upon such a return.

Besides, in the ease of The Bank of Columbia v. Dawes, this Court, in May, 1829, decided that the clerk could not issue a second, or alias, writ of fi. fa. upon the same order upon which the first was issued, but must have a new order founded upon a new affidavit, &c.

This objection, alone, is fatal to the new set of executions.

It has, however, been suggested by the answer, and insisted upon in argument, that by the 14th section of the original charter of the Bank of Columbia, “ such executions shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor.”

It is evident that this clause was only applicable to such super-sedeas, writ of error, appeal, or injunction as the debtor himself might attempt to interpose, or as might be interposed by some person who had voluntarily subjected himself to the summary remedy, by becoming a party to a note expressly made negotiable at the Bank of Columbia. It never could be intended to apply to a stranger to the note, whose property might be seized under the execution.

. But if this is nbt an answer to the objection, yet the case of Young v. The Bank of Alexandria, in the Supreme Court of the United States, 4 Cranch, 397, seems decisive as to this point. The question there arose upon these words, in the charter of that bank. “ And,from the judgment given in such cases, there shall be no appeal, writ of error, or supersedeas; ” ahd the cause came on upon a motion to quash the writ of error, because- issued in violation of that prohibition. Mr. Chief Justice Marshall, in delivering the opinion of the court, said:

“ The act incorporating the bank, professes to regulate, and. could regulate, only those courts which were established under the authority of Virginia. It could not affect the judicial proceedings of a court of the United States, or of any other State.

“ There is a difference between those rights on which the validity of the transactions of the corporation depends, which must adhere to those transactions everywhere, and those peculiar remedies which may be bestowed on it. The first are of general obligation; the last, from their nature, can only be exercised in those courts which the power, making the grant, can regulate.

“ The act of incorporation, then, conferred on the Bank of Alexandria a corporate character, but could give that corporate body no peculiar privileges in the courts of the United States not belonging to it, as a corporation. Those privileges do not exist unless conferred by an act of Congress.”

For these reasons, we are of opinion that the writs of fieri facias, executed upon Mr. Smith’s part of lot 46, in Old Georgetown, are void, and that the defendants ought to be perpetually enjoined from selling the same under the said writs, or either or any of them.

Thuuston, J., and Morsell, J., concurred.