18, commonly called the statute of Westminster. (See Ex-parte Foster, 5 Law Reports, 63, 67.)

It was by this statute the elegit was given, by virtue of which the judgment creditor has his | election to take a fieri facias for the sale of goods and chattels, or the elegit to extend the goods and chattels and one half the land. (See 2 Bac. Abr., tit. Execution, A, 686; 3 Black, 418.)

This statute does not expressly give any lien, but only authorizes the creditor, at his election, to sue out the elegit directed to the sheriff, and the command of the writ as prescribed is, that the sheriff shall levy the debt of the goods and chattels, and one half the land. (See form of writ, 2 Bac. Abr., tit. Execution, C. 710.)

It is by construction of this statute, the writ relates back to the judgment, and overreaches all intermediate incumbrances.

In like manner, at common law, the fieri facias, which commanded the sheriff to levy the debt of the goods and chattels, related back to its teste, and bound from that time. (2 Bac. Abr., tit. Execution, I, 733; as judgments did from time of judgment, same title, 731.)

By 29th Charles II., the statute of frauds (the same from which the Kentucky statute is copied), executions only bind from the time they are delivered. (2 Bac. Abr., tit. Execution, I, 733.)

Judgments docketed, and executions delivered, are evidently, in Bacon, at the pages cited (731, 733), placed on the same footing.

They seem to be placed on the same footing in the case of Foster (5 Law Reports, 63, 67). There are some other striking analogies between judgments and executions issued, which I will notice.

Mr. Chief Justice TANEY delivered the opinion of the court:

This case comes before the court upon a cer tificate of division between the judges of the Circuit Court of the United States for the District of Kentucky, upon the following statement:

"Savage had the title to the land; the plaintiff claimed under the decree of his bankruptcy; the defendant under a sheriff's sale under an execution.

"The act of bankruptcy of Savage was committed on the 27th April, 1842; the petition of his creditors was filed against him in the District Court on the 25th day of June, 1842, and he was declared a bankrupt on the 26th October, 1842; the plaintiff was appointed the assignee, and this is his title.

"An execution of fieri facias on a judgment against the estate of Savage was delivered to the sheriff on the 9th April, 1842, before the act of bankruptcy, and was levied on the land on day of before the petition; but after the act of bankruptcy the defendant purchased at the sheriff's sale, had his deed, and this was his title.

the

"The question was, has the plaintiff, by the decree of bankruptcy and its relation back to the act of bankruptcy, the elder and better title? the execution into the hands of the sheriff, and Or has the defendant, by the prior delivery of his levy of it, before the petition was filed, the

prior and superior title?"

An execution, as conceded, does not vest a title until executed, neither does a judgment. (Ex-parte Foster, 5 Law Reports, 64.) enant of seisin is not broken by outstanding judgment. (Sedgwick v. Hollenback, 7 Johns., 380.)

As between execution plaintiffs, he that by superior diligence acquires the first levy is preferred; so between judgments of the same date, he that first sues execution and sells, acquires a preference. (Adams v. Dyer, 8 Johns., 350; Watterman, &c., v. Haskins, 11 Johns., 230.) 118*] *Sale under junior execution, if first levied, would be valid; so is sale under junior judgment. (Sanford v. Roosa, 12 Johns., 162.)

In construing the statute above mentioned, the decisions of the courts of Kentucky have not been entirely uniform. In the case of Tabb v. Harris (4 Bibb, 29), decided in 1816, it was held, that the delivery to the sheriff cre

In a subsequent case, however, in the same volume, Daniel v. Cochrane's Administrator (4 Bibb, 532), decided in 1817, the court, in delivering their opinion, speak of the lien of a fieri facias, from the time it was delivered to the sheriff to be executed, as if it were a known and settled principle of law in that State. But this was not the main point in that case, which turned upon the question, whether the execution continued to bind the property of the debtor until the judgment was satisfied. The court held that it did not, and that the lien ceas

was not levied before. The question, as to

J. Marshall, 208), and in this case, which was decided in 1830, the doctrine in the case of Tabb v. Harris was fully sustained; and it was directly and distinctly decided, that the delivery to the sheriff created no lien against any other creditor, and that an execution afterwards placed in the hands of the sheriff, if first levied upon the property, was entitled to a preference.

But in the case of Million v. Ryley (1 Dana, 360), decided in 1833, the court held that the plaintiff obtained a lien by the delivery to the sheriff, and that the title acquired by the purchaser, when the execution was regularly levied and the property sold, related back to the delivery to the officer; and they speak of this lien as secured to the creditor by the Kentucky statute. In 1837 this subject again came before the court, in the case of Addison et al. v. Crow et al. (5 Dana, 274), and in this case the question appears to have been very fully considered, and the case of Million v. Ryley was referred to and commented on, and the principle decided in it in relation to the lien of an execution re-affirmed. In this case the court say "the levy of a fieri facias upon the land of the debtor undoubtedly renders the lien more specific, and being a necessary step in the execution of a writ, completes the authority of the officer to sell, and has the further effect of giving continuance both to the authority and the lien, which would otherwise expire with the return of the writ. And we do not perceive any necessity of reasonable ground for ascribing to it any other efficacy than this;" and in page 277 of the same case, the court again say, "no reason appears for attributing to a levy any efficacy except as one step towards the consummation of the lien arising from the delivery of the execution to the officer."

120*] *This is the latest decision in the courts of the State to which we have been referred, or of which we are aware, and, as we have already said, it appears to have been well considered. And whatever doubts might before have been entertained, we must, under the authority of this case, regard it as the settled law of the State, that the creditor obtains a lien upon the property of his debtor by the delivery of the fieri facias to the sheriff; that it acquires no additional validity or force by being actually levied, but that the lien is as absolute before the levy as it is afterwards, and continues while the process remains in the hands of the sheriff to be executed.

In this view of the subject it is unnecessary to examine or to remark upon the cases which have been decided in other States or in England, because the question depends altogether upon the law of Kentucky. And as by the laws of that State a fieri facias, when delivered to the sheriff, is a lien upon the property of the debtor while it continues in the hands of the officer to be executed, the creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor committed before the levy is made, but after the execution is in the bands of the sheriff. In the case before us, therefore, the court are of opinion that the defendant, by the prior delivery of the execution and the subsequent levy and sale, has the

HEZEKIAH H. GEAR, Defendant.

Act creating additional land districts in Illinois and Missouri construed-Injunction granted to restrain digging lead ore from public lands. The Act of Congress entitled "An act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois," approved June 26th, 1834, does not require the President of the United States to cause to be offered for sale the public lands containing lead mines situated in the land districts created by said act.

The said act does not require the President to cause said lands, containing lead mines to be sold, because the 5th section of the Act of the 3d March, 1807, entitled "An Act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut "D is still in full reserve, and for other purposes,

force.

The lands containing lead mines in the Indiana territory, or in that part of it made into new land subject, under any of the pre-emption laws which districts by the Act of the 26th June, 1834, are not have been passed by Congress, to a pre-emption by settlers upon the public lands.

The 4th section of the Act of 1834 does in no way

repeal any part of the 5th section of the Act of the 3d March, 1807, by which the lands containing lead mines were reserved for the future disposal of the United States, by which grants for lead mine tracts, discovered to be such before they may be bought from the United States, are declared to be fraudulent and null, and which authorized the [*121 President to lease any lead mine which had been, or might be, discovered in the Indiana territory, for a term not exceeding five years.

The land containing lead mines, in the districts made by the Act of 1834, are not subject to preemption and sale under any of the existing laws of Congress.

Digging lead ore from the lead mines upon the

public lands of the United States is such a waste as entitles the United States to a writ of injunction to restrain it.

These two cases came up from the Circuit Court of the United States for the District of Illinois, and involved the right of Gear, the defendant, to a tract of land upon which there was a lead mine. The first was an action of trespass quare clausum fregit on the common law side of the court; and the second a bill in chancery, with a prayer for an injunction to stay waste, on the equity side. The declaration charged Gear with having broke and entered the north half section 23, township 29 north, range 1 east, and the south half of frac tional section 8, township 28 north, range 1 east, both being east of the fourth principal meridian, and then and there dug up the mineral lead ore, &c., &c.

The defendant filed six pleas, all resting on the ground that he had settled, resided on, and occupied the land in question in the year 1827, and cultivated a part thereof, and had ever

、་;

gress?

ent manner.

When the cause came up for argument, in the court below, the judges were divided in opinion, and the questions duly certified to this court. They are somewhat differently stated in the two cases, and it is proper to mention both.

In the chancery case they are thus stated:

1. Whether the Act of Congress, entitled "An Act to create additional lands districts in the States of Illinois, Missouri, and the territory north of the State of Illinois," approved June 26th, 1834, so far repeals the 5th section of the Act of the 3d of March, 1807, entitled "An Act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes," as to subject the lands mentioned in said Act of June 26th, 1834, containing lead mines, to be entered and 122] *purchased by pre-emption under any of the pre-emption laws of Congress.

2. Whether the said act (1834) requires the President of the United States to cause lands containing lead mines to be sold, or only authorizes him to do so in his discretion.

3. Whether lands containing lead mines are subject to be held or purchased under any of the acts of Congress granting the rights of preemption to settlers upon the public lands.

4. Whether the digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to the allowance of a writ of injunction to restrain.

In the common law case they are thus stated: 1. Does the Act of Congress, entitled "An Act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois," approved June 26th, 1834, require the President of the United States to cause to be offered for sale the public lands situate in the land district created by said act, containing lead mines?

2. Does the said act require the President to cause said lands, containing lead mines, to be sold, notwithstanding the 5th section of the Act of the 3d of March, 1807, entitled "An Act making provisions for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes?"

3. Are the said lands, containing lead mines,

4. Does the 4th section of the said Act of 1834 so far repeal the 5th section of the Act of 1807 as to subject the public lands containing lead mines to be sold by the United States in the same manner as other public lands not containing lead mines?

5. Are the said lands, containing lead mines, subject to pre-emption or sale under any of the existing laws of Congress?

The acts of Congress referred to are the following:

On the 3d of March, 1807, an act was passed (1 Land Laws, 162), by the 5th section of which it was enacted, "That the several lead mines in the Indiana territory, together with as many sections contiguous to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States; and any grant which may hereafter be made for a tract of land containing a lead mine, which had been discovered previous to the purchase of such tract from the United States, shall be considered fraudulent and null. And the President of the United States shall be, and he is hereby authorized to lease any lead mine which has been, or may hereafter be, discovered in the Indiana territory, for a term not exceeding five years."

*At that time the land now included [*123 within the State of Illinois was part of the Indiana territory.

In 1827, Gear, the defendant, entered upon the north half of section 23, township 29 north, of range 1 east, erected a house upon it, cultivated and occupied it.

On the 29th of May, 1830, Congress passed "An Act to grant pre-emption rights to settlers on the public lands," the first section of which was as follows:

"That every settler or occupant of the public land prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby authorized to enter with the register of the land office for the district in which such lands may be, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter section, to include his improvement, upon paying to the United States the then minimum price of aaid land: Provided, however, that no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several States in which any of the public lands may be situated."

The 4th section declared that the sale of the public lands should not be delayed, nor should the act be available for those who failed to make proof and payment, and concluded as follows:

"Nor shall the rights of pre-emption contemplated by this act extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatsoever." The act was to remain in force for one year after its passage.

On the 5th of April, 1832, Congress passed an "Act supplementary to the several laws for

"Provided further, that all actual settlers, being housekeepers, upon the public land, shall have the right of pre-emption to enter, within six months after the passage of this act, not exceeding the quantity of one half quarter section, under the provisions of this act, to include his or their improvements, under such regulations as have been, or may be, prescribed by the Secretary of the Treasury," &c.

By the Act of the 1st June, 1840, the above act was continued in force until the 22d of June, 1842, subject to the exceptions therein contained.

On the 4th of September, 1841, an act was passed entitled "An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights."

On the 2d of March, 1833, an act was passed 124*] reviving that of *April 5th, 1832, extending the privileges granted by that act to the same period as those just mentioned, and placing the beneficiaries of the two acts of the 5th of April and 14th of July upon the same footing.

In 1834, two acts were passed, one on the 19th and one on the 26th of June. That of the 19th was to revive the Act to grant preemption rights to settlers on the public lands, approved May 29th, 1830.

The first section declared that every settler or occupant of the public lands prior to the passage of the act, who was then in possession, and cultivated any part thereof in the year 1833, should be entitled to all the benefits and privileges provided by the Act of 29th May, 1830; which act was revived and continued in force for two years.

The Act of the 26th June was entitled "An Act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois."

The 4th section enacted, "that the President shall be authorized, as soon as the survey shall have been completed, to cause to be offered for sale, in the manner prescribed by law, all the lands lying in said land districts, at the land offices in the respective districts in which the land so offered is embraced, reserving only section 16, in each township, the tract reserved for the village Galena, such other tracts as have been granted to individuals and the State of Illinois, and such reservations as the President shall deem necessary to retain for military posts, any law of Congress heretofore existing to the contrary notwithstanding."

On the 22 of June, 1838, an act was passed, the title of which was "An Act to grant preemption rights to settlers on the public lands." It enacted that every actual settler of the public lands, being the head of a family, or over twenty-one years of age, who was in possession and a housekeeper, by personal residence thereon at the time of the passage of the act and for four months next preceding, should be entitled to all the benefits and privileges of the

"No lands ineluded in any reser- [*125 vation by any treaty, law, or proclamation of the President of the United States, or reserved for salines or for other purposes," and "No lands on which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act." Mr. Nelson, Attorney-General, for the United States.

Mr. Hardin for the defendant.

Mr. Nelson. The early acts of Congress upon the subject are all stated in Mr. Gilpin's argument (14 Peters, 529). The Act of 1807 reserves all lead mines. If that act is still in force the case is clearly within it, because the replication avers the existence of a lead mine on this tract of land, and it is not controverted. If the case is withdrawn from the operation of that act, it must be through the effect of some one of the pre-emption laws. Let us inquire.

By the Act of 1830 (1 Land Laws, 473, 474, chap. 401), there is no right of pre-emption in lands reserved from sale.

That of 1832 cannot apply, because there is nothing in the record to show that the defendant made an application for this land, and thus brought himself within the provisions of the act.

That of 1834 merely revived the Act of 1830. Of course the same restriction was continued; and by that of 1838 it was continued for two years longer.

By the Act of 1841 (Session Acts, p. 26, chap. 16, sec. 10), no land is to be entered on which lead mines are.

In no act is there a pre-emption right varying from that given by that of 1830, except in the law of 1832, which says it shall be subject to such conditions as the Secretary of the Treasury should impose. But, in making these conditions, it was his duty to conform to the settled policy of the country.

These acts may then be laid aside, as having no bearing on the case. The one under which the controversy arises is that passed in 1834. At this session, two acts were passed, viz.: 1834, chap. 467, passed on 19th June; 1834, chap. 527, passed on 26th June.

The 4th section of the latter act is the clause to which the attention of the court should be directed. It authorizes the President to offer for sale the lands therein mentioned, with certain exceptions; and it is contended, on the part of the defendant, that lead mines are not named

in the exceptions, and that, consequently, the right of pre-emption accrued.

would have been different; for there is a dis tinction between reservation and appropriation. Grants made by executive officers were de

As

2. In every subsequent act, of 1838, 1840, 1841, there is the same reservation as in 1830, which is a strong legislative exposition of the meaning of Congress. In the distribution law, it is repeated; and the practice of the Executive Department has always been to refuse to grant such lands.

3. There is another legislative interpretation. In 1842 (chap. 190) an act was passed, including Wisconsin in the Act of 1834. Those who had entered lead mines were indemnified, and allowed to enter other lands, provided they did not violate the Act of 1830.

4. By the section of 1834 under consideration, the President might offer the lands for sale, but it was not incumbent on him to do so. He had a discretionary power, which carried with it the right to refuse to sell them at the minimum price of one dollar and twenty-five cents per acre. (See opinion of Attorney-General Butler, 2 Land Laws, 127, 128.)

In 14 Peters, 526, the court has decided this question. In that case the contract for leasing was made after 1834. It is true, that the act was not noticed in the argument, but this shows the opinion to have been then, that the act had nothing to do with the subject. It was argued by Mr. Benton upon a different ground.

But suppose that the President was authorized to sell these lands. How does the right of pre-emption follow? This is a matter regulated by Congress only. Does the Act of 1834 give a right of entry before the lands are offered at public sale? The Act of 1830 might have thrown open all lands, then in the market, to pre-emption rights; but it does not follow that that of 1834 did so too.

As to the propriety of granting an injunction in the equity case, on the ground that the bill alleges that the injury wil be irreparable. (See 2 Land Laws, 17; 3 Wheat., 131; 2 Story's Eq., 207, 208; Dewey on Injunctions, 137, 183, 184, 112.)

Mr. Hardin, for defendant:

The Act of 1807 reserved lead mines from sale, but left them subject to the future action of Congress. They were not appropriated to any particular purpose; no plan was adopted for their subsequent government. All that was done by that act was to say, that at some time thereafter Congress would consider what course should be taken with regard to them. They were, therefore, just as much open to the legislation of Congress as any other portion of the public lands. If an appropriation of them had been made, to take immediate effect, the case

future congressional action. By the Act of 1830, pre-emption rights are given in [*127 the broadest sense, except where lands are reserved for the United States. But they were often reserved for canals, light-houses, &c. long as the Act of 1807 was in force, we admit that the Act of 1830 did not give a right of preemption to the land in question, because it was reserved from sale. But the Act of April 5th, 1832, permits quarter quarter sections to be entered, and extends the privilege to all housekeepers, who had settled on the public lands, in the broadest possible terms. The defendant's plea shows him to have been entitled to claim it. There was no reservation in the act. It has been said, by the Attorney-General, that no settlement could be made on lands which had not been offered for sale, and that the Secretary of the Treasury must prescribe regulations. But the very term implies a recognition of a settlement thus made. What is it? Preemption: a right to purchase before the day of public sale. Before the passage of such a law, a settler was an intruder; but afterwards he had an estate upon condition. And if he complied with the act, he fulfilled the condition, and the estate became absolute. It has been called a gift. But if so, it was a gift under a legisla tive grant, which, in effect, vests the title, of which a subsequent patent is only the evidence, (2 Kent, 255; 4 Peters, 408, 42; 2 Howard, 316, 344.)

Being so, it was not in the power of the President or any executive officer to take it

away.

The object of Congress, in making the original If we look to results, they are all in our favor. reservation, was to prevent monopoly, but not leasing system has not paid expenses, and it the general settlement of the country. The injures the land. The Secretary of War has. mines should be sold; and we say that Congress for many years, recommended that the lead has ordered it, but that the President has improperly withheld them from sale.

By the Act of 26th June, 1834, the President tain reservations, and these are not within was authorized to sell the public lands with certhe reservations. But the Attorney-General sell; that it was a matter within his discretion. says that the President was only authorized to Be it so. reservations; and being no longer reserved, the This removes them from the list of pre-emption law of the 19th June comes in and operates upon them. What construction must be given to the word "authorized"? We say it makes it the duty of the President to sell. It is not only used so in the Act of 26th June. 1834, but in all acts in which Congress directs or authorizes land to be sold by order of the President. As in these acts: February 17th, 1818. sec. 3, Land Laws, 294; March 3d, 1823, sec. 10, Land Laws, 364; July 14th, 1832, sec. 2 Land Laws, 511; July 7th, 1838, sec. 1, Land Laws, 578; March 3d, 1815, sec. 5, Land Laws, 260; May 6th, 1812, sec. 1, Land Laws, 214.

Congress never does order the President in imperative terms. The language is [*128 courteous; but it is a ministerial act to pro