Christopher Court & Co. v. Vanbibber

The Court were of opinion that the treaty had the same operation as if no law had passed authorizing payments into the treasury j and, therefore, all acts done in virtue of said act of assembly were void; and therefore gave judgment, upon the case stated, for the plaintiff, that execution be awarded for the damages and costs recovered in the original judgment, and costs on the scire facias, to be levied of the part of the said lot of which the defendant admitted himself to be tenant. Interest from the 4th of July, 1776, to the 3d of Septem ber, 1783, to be released. The defendant appealed to the court of appeals. ¹⁴⁵ I shall readily admit, that by the common law in England, lands of defendants are bound by judgments if held in fee-simple, and may be taken in execution; 2 Inst. 395. even though aliened bona fide, before execution sued, (30 Ed. III. 24.) from the time of signing the judgment by 29 Car. II. c. 2, 3. 3 Com.

Dig. 298. But the only remedy at common law on a judgment whereby land could be taken in execution, was by levari faciqs, whereby the plaintiff could only take the present profits of the land and rents then due, 3 Coke, 11. b. 12. a; and also the goods and chattels of the defendant; but the lands could not be delivered in execution., Lands were not at any time subject to be taken by fieri facias in England. By the statute of Westm. 2. c. 18. a moiety of the lands of the defendant may be extended, and the goods of the party (except as therein excepted) by ek and the plaintiff holds that moiety until he shall beíjKtig^ lied his debt, by the yearly value at which it is i^li^red to him as found by inquest. These are the only utions in England, whereby lands can be affectefi personal actions.

But by a statute made in the time Geo. I. lands in America are subject to be taken in execution by fieri facias, and sold as personal property, and to all intents and purposes considered as such for the payment of debts. Lands are by this act become a sort of mixed property, partaking of some of the qualities of real and personal; and if it is to be governed by the law with respect to the rules of personal property, the fieri facias only binds from the delivery to the sheriff If, on the other hand, the judgment is thought to be a lien on the land, I apprehend it must be governed by the common law, and the statute of Westminster, and either the present profits, if taken by levari, or a moiety of the land if by elegit, are the only means whereby the ¹⁴⁶ judgments are to be paid out of the land. No fieri facias ever issued to bind the property in the present case.

I shall be told that the real estate is bound by the judgment; but I shall contend that if it was bound, and the judgment in this case had been a lien upon it, that it was discharged by the debt due thereon being discharged under the act of assembly, which enabled debtors to persons residing in Great Britain to pay their debts into the treasury, and discharge themselves thereby. The case stated admits that this was done, from which time to the treaty of