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United States v. Stansbury, 26 U.S. 1 Pet. 573 573 (1828)

United States v. Stansbury

26 U.S. (1 Pet.) 573


The discharge by the Secretary of the Treasury, of the principal in a bond to the United States who is imprisoned under a ca. sa. issued against him and who has assigned all his property for the use of the United States does not impair or affect the rights of the United States to proceed against sureties for the amount due upon the judgment, and unpaid.

At common law, the release of a debtor whose person is in execution is a release of the judgment itself. The law will not permit proceedings by a creditor at the same time against the person and estate of his debtor, and where an election has been made to take the person, it presumes satisfaction if the person be voluntarily released.

This was an action of debt brought in the Circuit Court of the United States for the District of Maryland at May Term, 1825, to recover $3,067, being the debt, damages, costs, and charges contained in a certain judgment between the same parties recovered by the United States in the District Court of Maryland at March Term, 1819. The original judgment was rendered upon a joint and several bond of these defendants, given for duties on an importation by Sheppard, and was rendered for $3,050 debt and $17 damages, costs, and charges. The declaration in this case was in the usual form, containing averments that the said judgment still remains in full force and effect, not in any wise annulled, reversed or vacated; that the said United States has not obtained any satisfaction of or upon the said judgment, and that the said defendants have not yet paid the sum of $3,067 or any part thereof, but to pay the same or any part thereof they have and each of them hath hitherto wholly refused, &c.

The writ in this case was served upon Stansbury and Morgan only, and not upon Sheppard. The two former appeared and pleaded in bar of this action that they were sureties for Sheppard in the bond upon which the said judgment was recovered. That after the said judgment was recovered and before this suit was commenced, Sheppard was taken and imprisoned by virtue of a capias ad satisfaciendum issued upon said judgment, and discharged from prison by order of the Secretary of the Treasury under the act of Congress passed on 6 June, 1798, on condition that he should pay the costs and assign and convey to the use of the United States all his property, real, personal, and mixed, by an instrument approved by the

Page 26 U. S. 574

then district attorney of the United States for that district, which order of the Secretary is set forth literally in the plea. The plea then avers that the said Sheppard did assign and convey all his estate, &c., by an instrument approved by the district attorney, and did pay the costs according to the conditions imposed by the Secretary, and was thereupon voluntarily released and discharged from the said execution by the said Secretary without the consent and against the will of them the said Stansbury and Morgan. Therefore they pray judgment, &c. To this plea there was a general demurrer and joinder, and judgment was rendered for the defendants pro forma in the circuit court, upon which judgment the United States has brought a writ of error to this Court.

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