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Feme Sole Trader.-Fieri Facias.

of the will. Query, if a legacy given by way of annuity to a husband for his maintenance can be attached in the hands of the executors. Is not such an annuity in its very nature a sum to be paid personally to the husband by the executors, as the bounty of the testator? Ibid.

or has voluntarily abandoned the wife. Rhea et al. v. Rhenner, 1 Peters, 108.

46. That a husband, even before marriage, may, in virtue of the marriage contract, have inchoate rights in the estate of his wife, which, if the marriage is consummated, will be protected by a court of equity against any anteced ent contracts and conveyances secretly made by the wife, in fraud of those marital rights, may admitted: but they are mere equities, and in no just sense constitute any legal or equitable estate in her lands or other property, antecedent to her marriage. Crane v. Morris's Lessee, 6 Peters, 598.

37. If a marriage contract is executed, the wife is a purchaser, and the contract is valid, though the husband was in debt at the time it was made. Magniac & Co. v. Thompson, Bald-be win's C. C. R. 359.

38. If the contract is executory, the wife is a creditor until it is performed; if part executed, she is pro tanto a purchaser, and a creditor for the residue. Ibid.

39. The husband has the same right to prefer his wife, in completing a settlement made before marriage, as he has to prefer any other creditor. Whether her position is as a creditor or purchaser, her rights are the same as purchasers for money, or creditors by bond. Ibid.

40. A court of equity will not sustain a bill of a married woman, suing by her next friend, to recover a legacy bequeathed to her, where the husband has transferred all his marital rights in the legacy to his wife. Gallego v. Gallego's Ex'r, 2 Brockenb. C. C. R. 225.

41. A legacy is a chose in action, and the marital rights of the husband to a legacy to his wife, do not attach, until it is reduced into possession. He may, indeed, sue for it, and reduce it into possession, but so long as it continues a chose in action, it is the property of the wife. Ibid.

42. A relinquishment of a husband of his marital rights to a legacy bequeathed to his wife is valid as to his creditors; and a court of equity will not interpose its authority to compel the husband to reduce the legacy into possession, for the purpose of subjecting it to their claims on him. Ibid.

43. The statute of frauds avoids all covenous conveyances, made with intent to delay, hinder, or defraud creditors; but does not extend to conveyances made on valuable consideration and in good faith; therefore, when the husband and wife made a conveyance of land for the use and benefit of the wife, in consideration of the wife relinquishing her right of dower in other lands, for the payment of the husband's debts, although the value of the right of dower is about one-third of the value of the land conveyed for the wife's use, yet such conveyance is not absolutely void; and in a court of law must be adjudged valid. Wright and Cooke v. Stannard, 2 Brockenb. C. C. R. 311.

44. Although a court of equity would consider such a deed as being held in trust for the wife, only to the amount of the value of her dower, which she had released, and for the benefit of the creditors for the residue, yet this cannot be done in a court of law. Ibid.

47. To convey her interest, a feme covert must be privily examined, as the law requires. Elliott v. Piersoll, 1 M'Lean's C. C. R. 13.

48. A defective acknowledgment of, cannot afterwards be amended on, parol proof. Ibid.

49. To make a good deed for the land of the feme covert, the husband must join in the conveyance. Watts et al. v. Waddle et al., 1 M'Lean's C. C. R. 203.

50. A bond of conveyance executed by a feme covert, is merely void, and conferred no right, legal or equitable, on the obligees. Agricultural Bank of Mississippi et al. v. Rice et al., 4 Howard, 241.

51. An indenture executed by husbands in right of their wives, in which no interest of the wives is said to be conveyed, passes only the interests of the husbands. In order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantees, and merely signing and sealing and acknowledging an instrument, in which another person is grantor, is not sufficient. Ibid

FEME SOLE TRADER.

The law seems to be settled, that when the wife is left by the husband, without maintenance and support, has traded as a feme sole, and has obtained credit as such, she ought to be liable for her debts; and the law is the same whether the husband is banished for his crimes, or has voluntarily abandoned the wife. Rhea et al. v. Rhenner, 1 Peters, 108.

FIERI FACIAS.

1. Money may be taken in execution, under process of fieri facias, if it is in the possession of the defendant. Turner v. Fendall, 1 Cranch, 117; 1 Cond. Rep. 261.

2. The general rule of law is, that all the property of the debtor may be taken in execution; and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so: and if he omits to perform his duty, he must be accountable to those who suffer by his omission. Ibid.

45. The law seems to be settled, that when the wife is left by the husband, without maintenance and support, has traded as a feme sole, and has obtained credit as such, she ought to be liable for her debts; and the law is the same, whether the husband is banished for his crimes, 3. A purchase under a fieri facias, duly issued,

Fieri Facias.

is legal as respects the purchaser, provided the writ be levied upon the property before the return day; although the sale be made after the return day, and the writ is never actually returned. Wheaton v. Sexton's Lessee, 4 Wheat. 503; 4 Cond. Rep. 519.

4. Congress has, by the constitution, power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce. Wayman et al. v. Southard et al., 10 Wheat. 1; 6 Cond. Rep. 1. Bank of the United States v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 22.

5. Land held under a special warrant, may be levied upon under a fieri facias, and sold under a venditioni exponas; but land held under an indescriptive warrant, cannot be so levied upon. Lessee of Lewis v. Meredith, 3 Wash. C. C. R. 81. 6. It is a fatal objection to an execution, that it issued more than a year and a day after the judgment, without a scire facias having been issued to revive the judgment. Azcaroti v. Fitzsimmons, 3 Wash. C. C. R. 134.

7. It seems, that the court would not be disposed to aid the plaintiff in an execution which had been dormant for a considerable time, to the disadvantage of a party having equal equity, although he had been equally negligent. Ibid.

of the law of that state, delivered to a person claiming title to it against the defendant in the execution, and who gave bond to the sheriff for the same. The marshal of the United States, under an execution issued against the same de fendant on a judgment obtained in the court of the United States, levied on the property in the hands of the claimant before the validity of his claim was decided. By the court:-A most injurious conflict of jurisdiction would be likely often to arise between the federal and the state courts, if the final process of the one could be levied on property which had been taken by the process of the other. The marshal or the sheriff, as the case may be, by a levy, acquires a spe cial property in the goods, and may maintain an action for them. But if the same goods may be taken in execution at the same time by the mar shal and the sheriff, does this special property vest in the one or the other, or both of them? No such case can exist: property once levied on, remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer; and especially by an officer acting under a different jurisdiction. Ibid.

14. Under the state jurisdiction, a sheriff having execution in his hands may levy on the 8. In Pennsylvania, the death of either of the same goods; and where there is no prior claim, parties after a fieri facias issued, does not pre- on the sale of the goods, the proceeds should be vent the venditioni exponas from issuing imme-applied in proportion to the sums named in the diately upon the return of the fieri facias levied on land and the same condemned. A scire facias is not necessary. Bleecker v. Bond, 4 Wash. C. C. R. 6.

9. An execution cannot issue in Pennsylvania, until the expiration of ten days from the judgment, and if it issue, the court will set it aside on motion. Bosbyshell et al. v. Oppenheimer, 4 Wash. C. C. R. 388.

executions. And where a sheriff has made a levy, and afterwards receives executions against the same defendant, he may appropriate any surplus that shall remain after satisfying the first levy, by the order of the court. But the same rule does not govern where the executions issue from different jurisdictions. The marshal may apply moneys collected under several executions, the same as the sheriff. But this cannot be done 10. A fieri facias had issued in 1806, and there as between the marshal and the sheriff. Ibid. was a levy and condemnation of the defendant's 15. When a fieri facias is levied, and the proproperty, and the defendant died after the inqui-perty is released by order of the plaintiff, the sition and condemnation were quashed; a scire facias must issue. The court will not willingly listen to a motion to set aside an execution, on the ground that other property in the hands of purchasers, since the judgment, is liable to contribute to the payment of the debt, and ought to have been levied upon. Wilson v. Hurst, Peters' C. C. R. 140.

11. The marshal having made the money on a writ of execution, may pay it to the plaintiff, and this will be a sufficient return. The court will not interfere in a summary way to distribute money, the proceeds of an execution; unless the same is paid into court. Wortman v. Conyngham, Peters' C. C. R. 241.

12. Property once levied on, remains in the custody of the law, and it is not liable to be taken by another execution, in the hands of a different officer; and especially by an officer acting under a different jurisdiction. Hagan v. Lucas, 10 Peters, 400.

13. Personal property was levied on by a sheriff under the judgment of the state court of Alabama, and was, according to the provisions

force of the judgment, and consequently the lien created by that judgment upon the debtor's land, are determined eo instanti. Scriba, &c. v. Deanes et al., 1 Brockenb. C. C. R. 168.

16. But if after the fieri facias is in the hands of the officer, but before it is actually levied, the debtor executes a mortgage to secure the debt, and the creditor covenants to suspend further proceedings upon his judgment, until the property conveyed by the mortgage should be disposed of, and should prove inadequate, and the officer endorses on the execution, "proceedings stopped by order of the plaintiff;" the fieri facias not being levied, and the covenant to suspend not being perpetual, the judgment is not released, and the lien upon the lands of the debtor created by it is preserved in full force. Ibid.

17. Where a fieri facias is levied, and another fieri facias upon a subsequent judgment in favour of the same plaintiff against the same defendant comes to the hands of the officer, while the property taken under the first execution is in his possession; this does not amount, ipso facto, to

Final Judgments from which Writs of Error will lie.

a levy. There must be an actual, and not a mere constructive levy. Ibid.

18. A judgment was obtained in the circuit court of the United States for the district of Virginia, in December, 1821, and a writ of fieri facias was issued on this judgment, in January, 1822, which was not returned, and no other execution was issued until August, 1836, when a capias ad satisfaciendum was issued against the defendant. Held, that this execution issued legally, in consequence of the lapse of time between the rendition of the judgment, and the issuing of the execution in 1836. Ross & King, v. Duval, 13 Peters.

19. The principle of the common law undoubtedly is, that no property but that in which the debtor has a legal title, is liable to be taken in execution; and accordingly it is well settled in the English courts, that an equitable interest is not liable to execution. In the United States different views have been taken of this question. Van Ness v. Hyatt, 13 Peters.

20. In the District of Columbia, which in this respect is subject to the laws of Maryland, in force when the territory was ceded to the United States, an equity of redemption cannot be taken in execution under a fieri facias. Ibid.

21. It is not upon the supposition of fraud, and the length of time to which indulgence had been granted by the plaintiff, in an execution against the defendant, that a subsequent execution, levied, has been preferred to a prior execution, the proceedings under which have been suspended by such indulgence. The true reason given for the preference to the subsequent execution levied, is, that the end of the execution is to obtain satisfaction for the debt; and when delivered to the officer, it is his duty to proceed immediately for the purpose of obtaining satisfaction. The delivery of the execution changes the property, and vests it in the sheriff, and his possession is notice to all the world. Berry v. Smith, 3 Wash. C. C. R. 60.

22. Where a levy and inquisition were set aside by the court, but the fieri facias not set aside, a new inquisition was held, and returned with the fieri facias and levy annexed, condemn ing the property, a venditioni exponas was issued, the property sold, and deed acknowledged by the marshal in open court. Held, that the validity of the sale was not affected by the want of an alias fieri facias, or a new levy. Thompson v. Phillips, Baldwin's C. C. R. 266.

23. The process act of congress, of 1828, was passed shortly after the decision of the supreme court of the United States, in the cases of Wayman v. Southard, and the United States Bank v. Halstead, and was intended as a legislative sanction of the opinions of the court in those cases. The power given to the courts of the United States, by this act, to make rules as a regulation of proceedings on final process, so as to conform the same to those of state laws on the same subject, extends to future legislation, and as well to the modes of proceeding on executions, as on the forms of writs. Ross & King v. Duval, 13 Peters.

FINAL JUDGMENTS FROM WHICH WRITS
OF ERROR WILL LIE.

1. Under the judiciary act of 1789, a writ of error to the supreme court can only be taken out, in case of a final judgment of the court, from which the writ of error is pecuted. Rutherford et al. v. Fisher, 4 Dall. 22: 1 Cond. Rep. 216.

2. Where in equity the defendant had entered a plea of the statute of limitations to the call of the complainants, and the plea was overruled, and the defendant was ordered to answer over, this is not a final judgment from which an ap peal will lie. Ibid.

3. A judgment reversing that of an inferior court, and awarding a venire facias de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433; 4 Cond. Rep. 286.

4. A decree of the highest court of equity of a state, affirming the decretal order of an inferior court of equity of the same state, refusing to dissolve an injunction granted on the filing of the bill, is not a final decree within the twentyfifth section of the judiciary act of 24th Sep tember, 1789, ch. 20, from which an appeal lies to the supreme court of the United States. Gib bons v. Ogden, 6 Wheat. 448; 5 Cond. Rep. 134.

5. Although a judgment of an inferior court be defective, yet if in its nature it is final, and one on which execution can issue, the party is entitled to his writ of error. Wilson v. Daniel, 3 Dall. 48; 1 Cond. Rep. 185.

6. Under the twenty-fifth section of the judi ciary act of 1789, ch. 20, giving an appellate jurisdiction to the supreme court of the United States from the final judgment or decree of the highest court of law or equity of a state, the writ of error may be directed to any court, in which the record and judgment, on which it is to act, may be found; and if the record has been remitted by the highest court, &c., to an other court of the state, it may be brought by the writ of error from that court. Gelston et al. v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 244. 7. A writ of error will not lie on a refusal of the court below to grant a nonsuit. Ibid.

8. But a writ of error will not lie on a judg ment of nonsuit. Evans v. Phillips, 4 Wheat. 75; 4 Cond. Rep. 394.

9. A case may be brought to the supreme court of the United States, from the highest court of law or equity in a state, under the twentyfifth section of the judiciary act of 1789, ch. 20, by a writ of error issued by the clerk of a circuit court, in the form prescribed under the ninth section of the act of 8th May, 1792, ch. 137; and it is not necessary that in such case the writ itself should state that it issued upon a final judg ment, or that the court to which it issued is the highest court in which a decision of the suit could be had. Buel v. Van Ness, 8 Wheat. 312; 5 Cond. Rep. 445.

10. A writ of error will not lie to the judg ment of a circuit court, granting or refusing a motion to amend. Den ex dem. Walden v. Craig, 9 Wheat. 576; 5 Cond. Rep. 687.

Fisheries.

11. A decree of foreclosure and sale of premises mortgaged, is a final decree, and an appeal will lie from the same. Wilson v. Speed, 3 Cranch, 283; 1 Cond. Rep. 531.

12. A decree perpetuating an injunction, leaving some matters of account open for further consideration, is not a final decree. Brown v. Swann, 9 Peters, 1.

13. A judgment awarding a writ of restitution in an action of ejectment, where, in the execution of a writ of habere facias possessionem, the sheriff had improperly turned a person out of possession, is not a final judgment in a civil action; it is no more than the action of a court on its own process, which is submitted to its own discretion. Smith v. Trabue's Heirs, 9 Peters, 4.

14. The supreme court of the United States has no jurisdiction under the twenty-fifth section of the judiciary act of 1789, ch. 20, unless the judgment or decree of the state court be a final judgment or decree. A judgment reversing that of an inferior court, and awarding a venire facias de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433; 4 Cond. Rep. 286.

Florida. never direct in what manner the discretion of an inferior tribunal shall be exercised; but they will, in a proper case, require an inferior court to decide. But, so far as it regards the case under consideration, the signature of the judge was not a matter of discretion. It followed as a ne cessary consequence of the judgment, unless the judgment had been set aside by a new trial. The act of signing the judgment is a ministerial and not a judicial act. On the allowance of a writ of error, a judge is required to sign a citation to the defendant in error; he is required, in other cases, to do acts which are not strictly ju dicial. Ibid.

FISHERIES.

1. By the act of 1793, ch. 52, no registered ship or vessel can, while she remains registered, engage in the whale fisheries; but she must sur render her register, and be enrolled and licensed for the fisheries. United States v. Rogers, 3 Sumner's C. C. R. 342.

2. The act of 1835, ch. 40, provides that "if 15. The words "final judgment," in the twen- any one or more of the crew of an Americau ty-fifth section of the judiciary act, must be un-ship or vessel on the high seas, &c., shall endeaderstood, in the section under consideration, as applying to all judgments and decrees which determine the particular cause; and it is not required that such judgments shall finally decide upon the rights which are litigated, that the same shall be within the purview of the section. Ibid. 464.

16. The district judge of Louisiana refused to sign the record of a judgment rendered in a case by his predecessor in office. By the law of Louisiana, and the rule adopted by the district court, the judgment, without the signature of the judge, cannot be enforced. It is not a final judgment, on which a writ of error may issue for its reversal. Without the action of the judge, the plaintiffs can take no step in the case. They can neither issue execution on the judgment, nor reverse the proceedings by writ of error. Life and Fire Insurance Co. of New York v. The Heirs of Nicholas Wilson, 9 Peters, 291.

vour to make a revolt," &c., he and they shall, on conviction, be punished as provided in the act. Held, that a ship engaged in a whaling voyage, without having surrendered her register or taken out an enrolment and license, pursuant to the act of 1793, ch. 52, was not an American ship, within the purview of the act of 1835, ch. 40; and that an indictment would not hold, under this act, against the crew, for an endeavour to make a revolt. Ibid.

FLORIDA.

until Florida shall become a state. In the mean time, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers "congress to make all needful rules and regulations respecting the territory or other property belonging to the United States." The American Insurance Co. v. 356 Bales of Cotton, 1 Peters, 542.

1. The treaty with Spain, by which Florida was ceded to the United States, is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of the citizens of the United States. 17. On a motion for a mandamus, the court They do not, however, participate in political held: The district judge is mistaken in suppos-power; they do not share in the government, ing that no one but the judge who renders the judgment can grant a new trial. He, as the successor of his predecessor, can exercise the same powers, and has a right to act on every case that remains undecided upon the docket, as fully as his predecessor could have done. The court remains the same; and the change of the incumbents cannot and ought not, in any respect, to injure the rights of litigant parties. The judgment may be erroneous; but this is no reason why the judge should not sign it. Until his signature is affixed to the judgment, no proceedings can be had for its reversal. He has, therefore, no right to withhold his signature, where, in the exercise of his discretion, he does not set aside the judgment. The court therefore directed that a writ of mandamus be issued, directing the district judge to sign the judgment. Ibid.

18. On a mandamus, a superior court will VOL. I.-63

2. The powers of the territorial legislature of Florida extend to all rightful objects of legisla tion, subject to the restriction that their laws shall not be "inconsistent with the laws and constitution of the United States." Ibid. 543.

3. All the laws which were in force in Florida while a province of Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered by the government of the United States. Con

4 T

746

FLORIDA TREATY.

Florida Treaty.

FLORIDA TREATY.

gress recognises this principle by using the words | sequent words, "shall be adjudicated," &c., prelaws of the territory now in force therein." scribe the rule by which the jurisdiction previ No laws could then have been in force but those ously given shall be exercised. Ibid. enacted by the Spanish government. If among them there existed a law on the subject of salvage, and it is scarcely possible there should not have been such a law, jurisdiction over it was conferred by the act of congress relative to the territory of Florida, on the superior court; but that jurisdiction was not exclusive. A territorial act, conferring jurisdiction over the same cases as an inferior court, would not have been inconsistent with the seventh section of the act vesting the whole judicial power of the territory in two superior courts, and in such inferior courts and justices of the peace as the legislative council of the territory may from time to time estab-government to which the assertion of its interlish. Ibid. 544.

4. The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts, in which the judicial powers conferred by the constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make laws regulating the territories belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the third article of the constitution, but is conferred by congress in the exercise of its powers over the territories of the United States. Ibid.

546.

5. The act of the territorial legislature of Florida, erecting a court which proceeded under the provisions of the law to decree, for salvage, the sale of a cargo of a vessel which had been stranded, and which cargo had been brought within the territorial limits, is not inconsistent with the laws and constitution of the United States, and is valid; and consequently a sale of the property made in pursuance of it changed the property. Ibid.

6. In courts of a special limited jurisdiction, which the superior court of East Florida unquestionably is, the pleadings must contain averments which bring the cause within the jurisdiction of the court, or the whole proceedings will be erroneous. United States v. Clarke, 8 Peters,

436.

7. It was obviously the intention of congress to extend the jurisdiction of the Florida courts to all existing claims, and to have them finally settled. The purpose for which the act was made could not be otherwise accomplished. Any claim which the courts were unable to decide, on the petition of the claimant, would remain the subject of litigation. This would defeat the obvious intention of congress, which ought to be kept in view in construing the act. Ibid.

8. The words in the law which confer jurisdiction in land claims, and describe the cases on which it may be exercised are, "all the remaining cases which have been presented according to law, and not finally acted upon." The sub

derstood its language and apparent intentions,
manifested in the instrument; with a reference
1. By the stipulations of a treaty, are to be un-
persons on whom it is to operate. United States
v. Arredondo et al., 6 Peters, 710.
to the contracting parties, the subject-matter and

2. The judiciary is not that department of the

duty, commonly, is to decide upon individual rights according to those principles which the ests against foreign powers is confided; and its political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. However individual judges might construe the treaty of St. Ildefonso, it is the province of the supreme court of the United States to confine its decisions to the will of the legislature, if that will has been clearly expressed. Foster and Elam v. Neilson, 2 Peters, 307; United States v. Arredondo, 6 Peters, 710.

territory, the sovereign is the grantor, and the
act is his; so far as relates to the cession the
3. A treaty of cession is a deed of the ceded
treaty is his act and deed, and all courts must so
by the rules of law. Ibid.
consider it; and deeds are construed in equity

in the words of the king, and expressed his
intention; and though the American version
4. The Spanish version of the Florida treaty was
showed the intention of the American govern-
ment to be different, the supreme court cannot
adopt it to decide what was granted by the king
of Spain, what accepted, and what reserved: the
rules of law are too imperative to be disregarded
ish language of the treaty is, that the grants of lands
in Florida, made before the treaty, except those
or mistaken. The true interpretation of the Span-
specially excepted, is that these grants remain
confirmed. The proprietors of such grants could
bring suits to recover them without any action
of congress; and any question arising would be
purely a judicial question. Ibid. 741.

ceded Florida to the United States, dated 224
May, 1819, was to invest the commissioners with
5. The object of the treaty with Spain, which
full power and authority to receive, examine, and
decide upon the amount and validity of asserted
claims upon Spain, for damages and injuries.
Their decision, within the scope of this authority,
is conclusive and final, and is not re-examinable.
The parties must abide by it, as the decree of a
rejected claim cannot be brought again under
review, in any judicial tribunal." But it does not
competent tribunal of exclusive jurisdiction. A
naturally follow that this authority extends to
adjust all conflicting rights, of different citizens,
to the fund so awarded. The coinmissioners are

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