Clark v. Allen

Citations

• 117 F. 699
• 1902 U.S. Dist. LEXIS 93

Syllabus

<p>3L Execution—Levy on Real Estate.</p> <p>Code Va. 1887, § 35S7, authorizes a levy of execution on personal property, but not on real estate. Acts 1821-22 provided that, in a writ of fieri facias on a judgment or decree against one liable to the commonwealth, real estate might be levied on. The enactment was carried into Code 1849, p. 223, § 8, and Code 1887, § 687. By Code 1819 (volume 2, p. 51), the right to levy on real estate was given only as against certain public officers. Act of congress (Rev. St. §’ 916) provides that in “common-law causes” in court's of the United States the plaintiff shall be entitled to similar remedies, by execution or otherwise, to reach the property of the judgment debtor, as prescribed by the laws of the state where the court is held “in like causes.” Held, that an execution from a federal court in Virginia may not be levied on real estate there, though the judgment is in favor of the United States, since the phrase “in like causes” does not give the government the rights of the state, but, as applicable to Virginia, which is not a code state, means “common-law causes.”</p> <p>2. Same—Statutes.</p> <p>The rule would not be otherwise had Code Va. 1887, § 687, been adopted after Rev. St. U. S. § 916, which also authorizes the federal courts to adopt from time to time, by rules, such state laws as may be in force touching attachments and other process, since such statute would not give the federal courts power to do more than adopt the state statute.</p> <p>3. Same—Criminal Case.</p> <p>The rule is not different in criminal or penal cases, since Rev. St. U. S. § 1041, provides that a judgment for a fine or penalty may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced.</p>