The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1871-07-20
HmPOrfaRf Opinion ny JuL&e
Woods. OfGhe United states
Ha Cfrcufa Court.

Marine Watkins, ct al
Joseph w. Carroll.
I Circuit Court United States, Southern Dis
frfcf Mississippi, sittfEy Ga Equity.
IN ERROR TO THE DISTRICT court OF rHE
UNITED STATES.
Wiley 7. Harris for Plaintiffs In Error
| VIM. Yerger for Defendant in Error.
OPINION BY THE HON. W. B. WOODS. CIRCUIT
JUDGE
I On the 18th of November. lS6s. Carroll,
/ Hoy & Co, recovered a judgment at law la
/ this court against Joseph q. Moore for
$3.50 SO. which afterwards they asst ned to
Joseph w. Carroll, the petitioner.
On the 2Sth day OF December, ISGs, the
said Joseph G. Moore, being seized Of certain
! real estate situate in Scott and Newton
counties. Mississippi filed his petition in
/ bankruptcy in the District Court OF the
United States for the Southern District of
Mississippi aud was thereafter adjudicated
bankrupt The petitioner claims that the
judgment Aforesaid Is a lien upon the lands
OF the bankrupt. and prays that after the
application or the means in the hands Of the
assignee OF the bankrupt TO the payment Of
the Judgment the said lands may be sold and
the proceeds applied to the same purpose.
Theanswer ofthe assignee. Marine Watkins
raises the question, whether the Judgment
Of Carroll, Hoy & CO., is IN fact a lien upon
the lands OF the bankrupt situate in Scott and
Newton counties. ..s
To determine this question 1t il necessary
to look TO the legislation Of Congress aud Of
the state al Mississippi on the subject of the
liens of Judgments.
Ia 1874 the Legislature of Mississippi
passed an act which gave Judgments lien
on the goods and chattels, lands and tene-
ments or the Judgment debtor throughout
the State. This act was in force on the 18th
OF May, 1928, when the Congress of the
United states passed An act providing that
I md 9th Al
Issued on judgments and DEGREES and the
proceedings thereupon should be the same
except their style. in each State respectively
as were then used in the courts OF the State.
In lS4l, the Legislature of the State Of
Mississippi passed an act providing that no
| Judgment or decree of any court OF the
United states or State of Mississippi should
be lien upon the property OF the debtor
out OF the county where the judgment was
rendered, until the plaintiff should file IN
the office of the Clerk Of the Circuit Cont
an abstract of such judgment or decree.
In 1891, IL was provided by an act of the
Legislature that judgments and DEGREES OF
the Y lted States Courts in this State. and
also of the High Court of Errors and An
peals and of the Chancery Court should not
! be lien upon lands within the county where
the Judgment or decree was rendered unless
an abstract thereof should be filed and re-
corded IN the ofhee of the Clerk Of the Cir
cult Court OF such county.
1t Is admitted that no such abstract of the
Judgment of Carroll, Hoy x Co. was filed
and recorded in the Circuit Clerks office in
elmer OF the counties OF Scott or Newton,
where the lands of the bankrupt are situ-
ate. Therefore. the defendant, the assignee.
says the Petitioner has no lien.
The act OF Congress of May 18th, 1928, by
its terms adopts the writs of execution and
other final process on judgments, and de-
crees ana the proceedings thereupOn, which
were at the time of its passage In use in the
several States. It applies TO and adopts the
State laws on the subject in existence al
that time; and those only. It contains
proviso authorizing the courts of the Uni
ted States by rule so far TO alter the final
process in said courts as to conform the
same 10 any change which might be adopted
| by the Legislatures OF the several states re-
Spectively for the State courts. II this act
was intended to adopt in advance any
changes on the subject of final process which
might be made by the State Legislatures
then this proviso would be vain aud useless
legislation.
The law of 1928 has been construed To
apply only to the state laws then In force bv
the Supreme Court of the United States IN
Ross VS.. Duval. 10 Peters. 81 and by the II.
>. Circuit Court tor the District OF Massa-
chu-etts, in Catherwood vs.. Gapete, in 2d
Curtis' Cir. Court Reports. p. "a, and by
Judge Mclean in Shaw VS.. Jones 2 Nc
Lean 7S La Southland VS.. Wyman, 10 Wheat.
L. the Supreme Court held that so far as the
process acts of 1883 adopt the State laws as
regulating the modes OF proceeding In suits
at Common Law, incluing executions the
adoption is confined to those laws I'm force
in September, 1889. This view, entertained
by this Court. is confirmed by the subse-
quent legislation OF Congress. BY the act
of February %. 1889. Stat. at Large. 32I il
is provided that no person shall be impris-
oned for debt in any State where, By the
laws of such State, imprisonment for debt
has been abolished. There was no necessity
for this enactment. il the law of 1928 had
prOspectiyely adopted the State laws
The acts of the Legislature OF Mississippi
i'm force on the 18th of May. 1923 respecting
process on judgments and decrees were
made, therefore, by act of Congress, the law
for the government of the United States
Courts in this State; and they remain the
law of this Court unaffected by the suisse
Quent legislation of the State.
But IL Is suggested by counsel for defen-
dants, and it remains TO consider, whether
the law OF 1928 was intended to regulate
the liens ofjudgments- aud adopt the laws
of the several States in respect thereof
This question has been passed on by the
Supreme Court of the United States In
Beers ct al vs.. Houghton, Peters 362. where
l. was decided that 1.-The words the proceed
''ings in writs of execution aud other penal
process must from their very import be
construed to include all the laws which reg
''ulate the rights, duties and conduct ofofi-
''cers in the service ofsuch process according
''to the exigency upon the person or property
"of the execution debtor, aud also ali the
exemptions from arrest or imprisonment
lander each process created by those laws.1
1t would be difficult to find stronger Ian
guage to indicate that by the words spro-
ceedings upon the executions was meant To
be included the force and effect OF the iud0-
ment; for the rights, duties and conduct Of
officers under an execution must be con-
,rolled to great extent by the laws re0u-
lating the lien of the judgment upon which
the execution is issued.
1t was claimed IN the argument that the
laws regulating the lien CT judgments were
rules OF property. and rules of decision
under the 34th section of the judiciary Act
of 1889, and, therefore, aRy changes made
by State legislation were binding ia this
court; and this view would seem 10 be sus-
tanned by remark OF Judge Mclean in
Clements VS.. Berry. ii Howard, All But
in Wayman vs.. Southland, 10 Wheaton, /,
Chief Justice Marshall held that the 9th
section Of the judiciary act bad no applica-
ton to the practice OF the court or to the
conduct OF its officers in the service of An
execution; and in Conard VS.. Atlantic ms
Co, Peters, Ii Was held that a general lien
by Judgment does not constitute per se a
property or right in the land itself-it only
conveys a right to levy on the same to the
exclusion of other adverse interests subse-
quent to the Judgment In MassingiIl vs.
Downs, Howard, 767, Mr.. Justice Mclean
cites this very decision TO show that sta
tutory lien is not a rule of property to be
applied 10 Judgments In the Circuit Courts
under the 34th section of the judicial act,
without being influenced la any degree BY
the process act.
1t was also claimed that unless the courts
of the United States were controlled in the
matter of the lien of Judgments by the
Legislation Of the State, that Judgment
creditors in the United States Courts would
have an undue and unfair advantage over
Judgment creditors in the State Courts. To
reply to this suggeation / quote the lam
guage OF Judge Mclean in Balch vs.. Cole
man, 2 Mclean, So: a
. III il shall be deemed important to have
the records OF the judgments OF this court
recOrded in the county where the lands of