Buchanan v. Alexander. 4 H.

superior court for the county of Norfolk, State of Virginia, under the twenty-fifth section of the judiciary act of 1789.'

Six writs of attachment were issued by a justice of the peace of the above county of Norfolk, by boarding-house keepers, against certain seamen of the frigate Constitution, which had just returned from a cruise. The writs were laid on moneys in the hands of the purser, the plaintiff in error, due to the seamen for wages. The money was afterwards paid to the seamen by the purser, in disregard of the attachments, by the order of the secretary of the navy.

The purser admitted before the justice that the several sums attached were in his hands due to the seamen, but contended he was not amenable to the process. The justice entered judgments against him on the attachments. The cases were appealed to the superior court of the county, which affirmed the judgments of the justice. And that being the highest court of the State which can exercise jurisdiction in the cases, and its judgments being against a right and authority set up under a law of the United States, may be revised in this court by a writ of error.

A

The important question is, whether the money in the hands of the purser, though due to the seamen, for wages, was attachable. purser, it would seem, cannot, in this respect, be distinguished from any other disbursing agent of the government. If the creditors of these seamen may, by process of attachment, divert the public money from its legitimate and appropriate object, the same thing may be done as regards the pay of our officers and men of the army and of navy; and also in every other case where the public funds may be placed in the hands of an agent for disbursement. To state such a principle is to refute it. No government can sanction it. At all times it would be found embarrassing, and under some circumstances it might be fatal to the public service.

the

The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be diverted and defeated by state process or otherwise, the functions of the government may be suspended. So long as money remains in the 'hands of a disbursing officer, it is as much the money of [*21] the United States, as if it had not been drawn from the

treasury. Until paid over by the agent of the government to the person entitled to it, the fund cannot, in any legal sense, be considered a part of his effects. The purser is not the debtor of the sea.

men.

It is not doubted that cases may have arisen in which the govern

11 Stats. at Large, 85.

Spalding v. State of New York. 4 H.

ment, as a matter of policy or accommodation, may have aided creditor of one who received money for public services; but this cannot have been under any supposed legal liability, as no such liability attaches to the government, or to its disbursing officers.

We think the question in this case is clear of doubt, and requires no further illustration.

The judgments are reversed at the costs of the defendants, and the causes are remanded to the state court, with instructions to dismiss the attachments at the costs of the appellees in that court.

LYMAN A. SPALDING, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, ex rel. FREDERIC F. BACKUS, Defendants.

4 H. 21.

A certificate of discharge under the bankrupt law (5 Stats. at Large, 440) of the United States, did not release the bankrupt from a fine imposed by a court of chancery of a State, for breach of an injunction.

ERROR to the high court for the trial of impeachments, &c., of the State of New York.

The plaintiff in error having been enjoined by a court of chancery, and attached for a breach of the injunction, was fined $3,000 and costs, taxed at $196.51. Afterwards, he applied for the benefit of the bankrupt act, and while the proceedings were pending, was committed to prison for non-payment of the said fine and costs.

Having obtained his discharge and certificate under the bankrupt law, he was brought before a state supreme court commissioner, on a writ of habeas corpus, and by him discharged from that imprison. ment. The vice-chancellor ordered a new mittimus to issue, under which to imprison the plaintiff, notwithstanding his discharge aforesaid, which was shown to the vice-chancellor in opposing the order. The plaintiff in error appealed from this order to the chancellor, who confirmed it, and again to the court of errors, where it was reaffirmed He then sued out this writ of error.

Artenius, for the plaintiff.

Delano, contrà.

[ * 36 ]

* TANEY, C. J., delivered the opinion of the court. The court have considered this case, and have come to the conclusion that the judgment of the court of the State of New York for the correction of errors, must be affirmed. But there is some difference among the justices who concur in affirming the judgment as to

Beals v. Hale. 4 H.

the principles upon which the affirmance ought to be placed. No further opinion will, therefore, be delivered, than merely to pronounce the judgment of this court, affirming the judgment rendered by the

state court.

M'LEAN, J. I dissent from the judgment of the court.

WAYNE, J. I do not concur with the majority of the court, and think that the judgment of the court for the trial of impeachments, and for the correction of errors, should be reversed.

THOMAS BEALS, Plaintiff, v. FELICITE HALE, Defendant.

4 H. 37.

Two acts of the State of Michigan, passed on the same day, respecting recording of conveyances, held not to be repugnant, and that a mortgage was rightly recorded in the county registry, though the land was in the city of Detroit, and one of these acts provided for registration in the city registry.

CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the district of Michigan, upon the question what judgment should be rendered on a special verdict, which was as follows:

"That John Hale was, on the thirteenth day of November, in the year of our Lord one thousand eight hundred and twenty eight, seised and possessed in his own right of said lots number sixteen, seventeen, and eighteen, in the city of Detroit, county of Wayne, and (then territory, now) State of Michigan.

That, being so seised and possessed of the said premises, he, the said John Hale and Felicite Hale, his wife, executed a mortgage, to secure the payment of a certain sum of money, to one James Lyon, bearing date the thirteenth day of November, in the year

樓

of

our Lord one thousand eight hundred and twenty eight, [38] of the said lots, together with other lands lying in the said county of Wayne, as well as of certain lands in the county of Monroe, in the territory of Michigan, which said mortgage was recorded in the office of the register of the said county of Wayne, where said lots and part of said mortgaged premises were situated, on the thirteenth day of January, in the year eighteen hundred and twenty nine, in Liber 9 of Mortgages, pp. 103, 104, 105, &c., and also in the county of Monroe, where the remainder of said lands and premises were situated, in the office of register for said county, in Liber 9, Folios 281 to 286. That said mortgage was afterwards, to wit, on the twenty-first day of November, in the year eighteen hundred and

thirty-eight, foreclosed under the statutes of the State of Michigan, and the said several lots sold at public auction, and struck off to said Lyon at the sale thereof, and that a sheriff's deed was afterwards, on the 6th day of April, a. d. 1842, executed to the said plaintiff, as assignee of the certificate of sale to said Lyon of the said lots, they not having been redeemed within two years from the time of sale, pursuant to statutes of said State in such case made and provided, which said deed was duly recorded.

"And the said jury further find, that the said John Hale, and Felicite, his wife, after the execution of the former mortgage, and before a foreclosure thereof, to wit, on the sixth day of June, in the year eighteen hundred and thirty-seven, for a good and valuable consideration, duly made, acknowledged, and delivered, under their respective hands and seals, to Nathaniel Weed, Harvey Weed, and Henry W. Barnes, (who had no notice of said prior mortgage unless said record was notice,) another or second mortgage on the said premises, lots sixteen, seventeen, and eighteen, in the city of Detroit, county of Wayne, and State of Michigan, which said mortgage, bearing date the said sixth day of June, in the year eighteen hundred and thirty-seven, was duly recorded in the appropriate registry, on the seventh day of June, in the year eighteen hundred and thirty-seven, in Liber 8, Folio 343, of Mortgages, and which said mortgage was afterwards, on the thirty-first day of August, in the year eighteen hundred and thirty-nine, foreclosed under the statutes of said State, exposed to sale, and struck off to said Weeds and Barnes at the said sale, and, not having been redeemed within two years therefrom, that a sheriff's deed of said premises was executed on the 16th day of August, eighteen hundred and forty-two, and delivered to said Nathaniel and Harvey Weed, and Henry W. Barnes, of all and singular the said premises, which was duly recorded.

"That the plaintiff and defendant both claim under the respective mortgages above set forth, and the sheriff's deeds under the respective foreclosures aforesaid; and that Felicite Hale, the defendant, was, at the institution of this suit, and still is, a tenant in [* 39 ] *possession of said premises, under a lease from said Weeds and Barnes, who are admitted under the statute to defend as her landlords.

"And the jurors aforesaid, on their oaths aforesaid, do further say, that if it shall appear to the said court, from the facts above found, that the recording of said prior mortgage from Hale to Lyon in the registry of Wayne county was sufficient record thereof to constitute notice of said mortgage under the laws of Michigan, in reference to mortgages of real estate situate in the county of Wayne,

Beals v. Hale. 4 H.

within the limits of the city of Detroit, then they find for the plaintiff.

"But should said court be of opinion that said record in the office of said registry for the county of Wayne was invalid and insufficient in law, so far as the said premises in the city of Detroit are concerned, to constitute notice thereof to the subsequent mortgagees, then they find for the defendant.

Henry N. Walker, for the plaintiff.

George C. Bates and Alexander D. Frazer, for the defendant.

[ *51 ]

WOODBURY, J., delivered the opinion of the court. The sole question presented in this case is, whether a mortgage executed by the tenant and her husband to James Lyon, on the 13th of November, 1828, shall prevail over another mortgage executed by them to Nathaniel and Harvey Weed and Henry W. Barnes, on the 6th day of June, 1837. Being earlier in time, by nine years, the first mortgage ought of course to have precedence, and will entitle the demandant to recover, unless it was improperly recorded.

The facts, important to be now noticed in connection with that question, are, that, at the time of the execution of the first mortgage, there were two registries, -one in the city of Detroit, and the other in the county of Wayne, within which that city was situated. The premises in dispute were within the limits of the city, and the first mortgage was recorded, on the 30th of January, 1829, in the registry for the county of Wayne, but not in the registry for the city of Detroit, where the second mortgage was recorded, June 7, 1827. On these facts, whether the recording of the first mortgage was legal void must depend upon the construction of two statutes of the State of Michigan, both passed April 12, 1827.

or

The demandant relies upon one of them, as being the only statute for recording "mortgages," and as his registry was duly made under that, he claims to recover. While the tenant relies upon the other statute, as embracing the case of mortgages, and as his was the only one recorded in conformity with it, and others not so recorded are declared void, he asks for judgment in his favor. It seems hardly to have occurred to either side, that a construction may be given to these statutes, which will make them both operative on this subject, and sustain both of the mortgages according to their original rank and intent; and if no legal principle is opposed to such a course, it is certainly entitled to preference.

Because it is a well-settled principle of construction, that convey