unless the plaintiff could show it to be a case of escape. His reply, therefore, to the motion of the defendant's counsel, was, as appears by the record, that the defendant "before the last capias ad satisfaciendum was issued against him, and after the first had been served upon him, escaped from the custody of the said sheriff." The fact of the escape having been proved by the affidavit of Mr Martin and Mr Polk, the court refused to set aside the writ, and to discharge the defendant, and the record then proceeds thus: "and the said Lambert Hyland, being called, appears, and it being demanded of him whether he be the same person taken in execution at the suit of the said Hannah West, executrix as aforesaid, confesses that he is, and that he hath not the money to satisfy to the' said Hannah West, executrix as aforesaid, the debt, damages, costs and charges aforesaid; whereupon, on the prayer of the said Hannah West, executrix as aforesaid, by her attorneys aforesaid, the said Lambert Hyland is by the court now here committed to the custody of the sheriff of Somerset county aforesaid, in execution for the debt, damages, costs and charges aforesaid, at the suit of the said Hannah West, executrix as aforesaid, there to remain, until, &c. and the said sheriff, being here present, takes charge of the said Lambert Hyland accordingly," &c. The court of appeals sat at Easton, in Talbot county. The capias ad satisfaciendum was directed to and returned by the sheriff of Somerset county. This record is also proof of the practice in Maryland, to require the defendant who had been arrested on a capias ad satisfaciendum to be brought before the court upon the return day of the writ, and committed in execution as a justification of the sheriff for holding the defendant in custody after that day.

That the general rule, as modified by the statutes of 1st and 21st Jac. and 8 and 9 W. 5, with the single exception of escape, remains as it was at common law, appears in Tidd's Practice (Troubat's edition, Philadelphia, 1828), 196, 1035, 1068, and in Saund. Williams's ed. 35.

That it prevails also in other states than Maryland, appears in the case of Yates v. Van Rensselaer and Schemmerhorn, 5 Johnson, 564, where the court said, "though we may say in the language of Justice Grose (2 East, 244), that the attempt on the part of the defendant to get discharged of the debt is scandalous, yet the rule of law is settled.” And in Freeman v. Ruston, 4 Dallas, 217, where the court observed, "the case appears so clear to us, that we do not wish another moment for consideration. The law is settled in England, that a capias ad satisfaciendum operates as a satisfaction of the debt; as an extinguishment of the lien of the judgment. We have no other rule prescribed to us in Pennsylvania; nor can we perceive that there would be any policy or justice in departing from it."

Such, therefore, being the general principle so long and so well established, it is incumbent upon the United States to show either that they are not bound by the general rule, or that they are within some exception to it.

In the first place, it is said that the rule only applies to civil cases; and that this is a criminal case, and therefore not within the rule.

The answer to this objection is, that the United States are only authorized to issue a capias ad satisfaciendum for a fine by the law of Maryland, which they have adopted for this part of the district, and which, in giving the writ, expressly requires that "such proceeding should be had thereon, as in cases where similar writs are issued on judgments obtained in personal suits." The United States must take it as it is given; and when they do take it, they must proceed civiliter, and not criminaliter. The nature of the proceeding is changed; and the state of Maryland, by giving this civil remedy, has in effect agreed that she will so far waive any prerogative attached to her criminal jurisdiction. The United States by adopting the same remedy, must do the same. This point, we think, is decided by the supreme court of the United States, in Ex parte Watkins at the last term, when they admit that the United States were bound by the Maryland practice in regard to execution by capias ad satisfaciendum in civil cases.

But if the United States are bound by the general rule, it is said that the general rule is confined to the case of a discharge with the consent of the plaintiff. This position is not supported by the authorities cited. Blumfield's case (5 Co. 86, b.) is the strongest; but the authority of that case is denied in several subsequent cases; and in some the dicta, which appear to give some countenance to the position assumed on the part of the United States, are expressly overruled; as has been before noticed.

There is no pretence that the defendant escaped. On the contrary he was discharged by the supreme court of the United States upon habeas corpus, because the marshal had not, according to the exigency of the writ, and the practice of Maryland in like cases, any authority to detain him beyond the return term of the writ, unless under a commitment by the court at the prayer of the plaintiff, and in that case the United States did not pray him into commitment. The United States might have had the full benefit of their judgment and execution, but did not avail themselves of it.

To this, however, it is objected, that it was either the neglect of the marshal, in not bringing in the defendant, or of the attorney of the United States in not calling on the marshal to bring him in; and that the United States are not bound by the neglect of their officers.

This objection, we think, is also answered by the judgment of the supreme court in the case Ex parte Watkins at the last term. For the objection was as valid then as it is now-and if the United States were not bound by the neglect of the marshal to bring in the defendant at the return of the first capias ad satisfaciendum; and of the attorney of the United States to pray him in commitment; then the case would have stood before the supreme court as a case in which the marshal bad brought in the defendant at the return of the writ, and as if the attorney of the United States had prayed him in commitment; and then that court could not have discharged him on the ground they did; for the only ground upon which he was discharged by that court was, that the United States had neglected to have the defendant brought into court at the return day of the writ and prayed in commitment. The same answer may be made to the supposition that the omission to have the defendant committed was caused by the mistake of the officer of the United States as to the law or the practice of the court. The objection was as valid in the case before the supreme court as it is here. But if it were not so, the United States having, by taking the writ of capias ad satisfaciendum, under the law of Maryland, placed themselves, so far as the proceedings are to be carried on under that writ, upon the ground of an individual in a personal suit, they are equally liable to lose the bene fit of the writ by the neglect of their officers to pursue it to its full effect.

It may be proper to notice some expressions in some of the cases cited on the part of the United States, which, from their generality, may be supposed to favour the construction given to the general rule by the counsel for the United States.

It may be observed of the cases in which it is said that the taking of the body is good execution, but is not satisfaction, that they are cases where there was judgment against two or more defendants, and one of them taken in execution. In those cases the taking of one was not satisfaction as to the others. Such was the case 29 H. 8, Br. Execution, pl. 132, and Blumfield's case, 5 Co. 86 (b.), and the anonymous case in Moore, 29, ca. 96, and Cowley v. Lydcot and Bulstrode, 97, and Whitacres v. Hawkins, Cro. Car. 75, and Rosser v. Welch and Kennis, Godbolt, 208; Shaw v. Cutteris, Cro. El. 850; Williams v. Cutteris, Cro. Jac. 136, 145; Price v. Goodrick, Styles, 387, and Clark v. Clement, 6 T. R. 525.

The language of Mr Justice Baldwin, in delivering the opinion of the supreme court of the United States in the case Tayloe v. Thompson, 5 Peters, 370, has been cited to show that in every case of the discharge of a defendant from execution upon á capias ad satisfaciendum, without actual payment of the debt, or the consent of the plaintiff, he may have a new capias ad satisfaciendum and arrest the defendant

again upon the same judgment. The only point decided in that case, in relation to the question in this, was, that the arrest and escape of Glover upon a capias ad satisfaciendum did not destroy the lien of the judgment upon Glover's lands; and that was the whole extent to which it was necessary, in that case, to lay down the law as to the effect of a commitment of the body in execution. The language of the opinion, however, is-" the greatest effect which the law gives to a commitment on a capias ad satisfaciendum, is a suspension of the other remedies on the judgment during its continuance: whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any." Whether the negligence of the creditor in not pursuing his remedy, whereby he lost the benefit of the arrest, would be considered as evidence of his consent to the termination of the commitment, might be doubtful, but it cannot be admitted that the court would have decided that if the plaintiff has once had the body of his debtor in execution, and by his own negligence loses the full benefit thereof, without any fault on the part of the defendant, he may have a new capias ad satisfaciendum, and again take the body in execution on the same judgment. Lord chief justice Hobart, in Foster v. Jackson, (Hob. 57) says "neither can the body be taken for a time, or for part, as a fieri facias, but it must be totally and finally during his life." And in page 59 he says that if a capias be executed; that is in law sufficient for the whole debt; for the value of the human body cannot be estimated. It is but just and fair in construing the language of a judicial opinion, to consider it in reference to the point of the case, and to consider the court as not intending to extend the doctrine advanced, beyond the limit necessary to support the decision. All beyond that must be considered as a dictum, and of no greater weight than that of the authorities by which it is supported.

The case of Codwise and Gelston, (10 Johnson, 517) has also been mentioned; but in that case the debtor was never charged in execution, and because he had not been so charged, Chancellor Kent decided that the surrender of him, by his bail, to the sheriff, after judgment, and his release from the custody of the sheriff, by the order of the plaintiff, without taking him in execution, did not discharge the lien of the judgment upon the lands of the defendant.

These dicta are wholly insufficient to unsettle the long established principle of the common law that a man shall not be twice taken in execution for the same

cause.

Being of opinion that the United States, when proceeding under the adopted law of Maryland, are bound by that principle; and that, in the present case, they do not come within any known and established exception to that rule; it being also apparent that the defendant has been twice taken in execution upon the same judgments, and is now held in custody under the second execution, without any fault on his part that can deprive him of the benefit of the rule, we deem it our duty to order him to be discharged.

This opinion renders it unnecessary to express any upon the other two points made in the argument.

The motion of the attorney of the United States to commit the defendant upon these writs, is overruled; and the writs are ordered to be quashed, and the defendant to be discharged from the custody of the marshal.

INDEX

OF

PRINCIPAL MATTERS.

ACTION.

1. A suit on a recognizance of bail is an original proceeding. A scire facias upon a judgment, is to some purposes only a continuation of the former suit. But an action of debt on a judgment is an original suit. Davis v. Packard. 276.

2. An action of debt on a recognizance of bail may be brought in a different court from that in which the original proceedings were commenced. Ibid.

3. Action of covenant brought by the plaintiff in error to recover the amount of certain rents alleged to have been due and in arrear from the defendant since the death of his intestate under an indenture, by which a certain annual rent was reserved out of the property conveyed by the indenture, and which the grantee covenanted to pay; a clause of re-entry for non-payment of the rent being contained in the deed. By the court: it is firmly established, that on a covenant to pay rent, reserved by the deed granting real estate subject to the rent, the personal representatives of the covenantor are liable for the non-payment of the rent, after an assignment, although there may also be a good remedy against the assignee. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England. Scott v. Lunt's Administrator. 596.

4. The assignee of a fee farm rent, being an estate of inheritance, is, upon the principles of the common law, entitled to sue therefor in his own name. It is an exception from the general rule, that choses in action cannot be transferred, and stands upon the ground of VOL. VII-4 L

ACTION.

being, not a mere personal debt, but a perdurable inheritance. Ibid.

5. Action on a bond executed by William Carson, as paymaster, and signed by A. L. Duncan and John Carson as his sureties, conditioned that William Carson, paymaster for the United States, should perform the duties of that office within the district of Orleans. The breach alleged was that W. C. had received large sums of money in his official capacity, in his life time, which he had refused to pay into the treasury of the United States. The bond was drawn in the names of Abner L. Duncan, John Carson and Thomas Duncan as sureties for William Carson, but was not executed by Thomas Duncan. There were no witnesses to the bond, but it was acknowledged by all the parties to it before a notary public. The defendants, the heirs and representatives of A. L. Duncan, in answer to a petition to compel the payment of the bond, say that it was stipulated and understood, when the bond was executed, that one Thomas Duncan should sign it, which was never done, and the bond was never completed; and therefore A. L. Duncan was never bound by it: they also say, that, as the representatives of A. L. Duncan, they are not liable for the alleged defalcation of William Carson, because he acted as paymaster out of the limits of the district of Louisiana; and the deficiencies, if any, occurred without the limits of the said district. Before the jury were sworn the defendants offered a statement to the court for the purpose of obtaining a special verdict on the facts, according to the provisions of the act of the legislature of Louisiana of 1818. The court would not suffer the same to be given to the jury for a special finding, because it "was contrary to the practice of the court to compel a jury to find a special verdict." The judge charged the jury that the bond sued upon was not to be governed by the laws of Louisiana in force when the bond was signed at New Orleans, but that this and all similar bonds must be considered as having been executed at the seat of the government of the United States, and to be governed by the principles of the common law; that although the copy of the bond sued on, which was certified from the treasury department, exhibited a scrawl instead of a seal, yet they had a right to presume that the original bond had been executed according to law; and that in the absence of all proof as to the limits of the district of New Orleans, the jury was bound to presume that the defalcation occurred within the district; and if the paymaster acted beyond the limits of the district, it was incumbent on the defendants to prove the fact: held, that there was no error in these decisions of the district court of Louisiana. This is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed; and also the mamer in which its obligations should be enforced. It was delivered to the treasury department at Washington; and to the treasury, did the paymaster and his