. I'&DEBAL REPORTER;
DARTMOUTH SAV · BANK fl. BATES
(Olil'cuUOourt, D. Kansal.
Pr.or to 11:188 the lien of judgments in the federal courts was clI-extenslve with their territorial jurisdiotion.,Aot Cong. Aug. Id888, ('Z5 U. S. St.&>7,) P"OVlUllS that lobe judgmentB of the federal courts within any state shaltbe liens on property tbl'OUlfhout suohBtate in lobe same manner as the judgments of oourts of general junltdlction ,of tbe state: ProVided.',tha.t If the .state. laws. require judgments of tbe state courts to be recorded in other oounties befo"e they become liens on lands sitoatetberein, this aot shall only be applicable in oase provision is made fur recording of federal oourt Juclgmonts also. Geo. St. Kan. 11S6&. o. 'SO, § 419, proVides that Judgments of state and federal courts shall be lieus on the debtor's lands in the .county Where rendered, and that" any judgment" may be reoorded in other counties! ,and become a lien ,from that time on the I!md,of the debtor in such county. Bela that., nnder.tbese two. aots. a judgment in a federal CO.urt in Kansas was a lien only on the bind of the debtor in lone county in wbiob tb,e court. was beld, but that lobe lien might be extellded byreeol'ding the judgment under the state law.
OJ' JC:»GMBNT-RECORDINI;t-TERRITORIA.L JTTRISnICTION. . '
Frederick D. Puller, for plaintiff.
, Bill fodnjunction.
O"M. Welch,for defenqants. CALDWEl.L and FOSTER, JJ.
CALDWELL, J. At the threshold of this case we are .met with the question whether a judgment rendered in the circuit court of the United States for the district of Kansas is a lien on the lands of the judgment debtor outside of the county in which the court was held and the judgment rendered. The judgment gave rise to this suit was rendered ip thft eircuit court of the United States at Topeka, in Shawnee county, and the lands of the ;judgment debtor upon which it is claimed the judgment was a lien are situated inWabaunsee county: Land was not liable to,be sold on execution at common law, aod, asa consequence of this, at common law a judgment created no lien on the' land of the judgment debtor. , The lien was created in England by the statute of Westminster 2, (13 Edw. 1.) c. 18.. This statute gave the elegit or writ.ofexecution, which subjected real estate to the payment'of debts. This statute did not, in. terms, declare that a judgment should be a lien on the lands of the debtor, but the courts held that the effect ofa statute subjecting lands to. sale on execution was to make the judgment a. lien on .the lands of the debtor; and in this coun.t,ry'state statutes subjectingland to sale on execution received theBaIne construction, a,nd were held to make judgments liens on the landS of the debtor within the territorial jurisdiction of the court rendering the judgment. Massingill v. Downs, 7 How. 766, and cases cited. The laws of theseveral states on the su bject of judgment liens are ,and neyer have been, uniform. By the laws of some states a judgment is not a lien on lands; in others it is a lien co-extensive with the territorial jurisdiction of the court. In some the lien takes effect from one date, and in others from another, and the duration of the lien is different in different states. No act of congrt:88 was ever passed declaring, in terms, that judgments'
in t11e federal courts should be liens, independentlybf tIle stateJaw,on the judgment debtDf's lands. It is within the constitutional power of congress to makejudgrnents in the federal courts liens on the debtor's property, and to fix the territorial extent and du.ration of such liens, independently of state laws. But in this, as in ,all other matters relating to the 'practice aIld proceedings for obtaining and enforcing judgmeIltsiIl the federal courts, it has always been the policy of congress to contorm the processes in the federal courts to those in the state courts. In Ward v. Ohamberlain, (2 Black, 430, 442, 443,) supreme court said: .. Under the earlier process acts this cOQrt twic::e decided that the Iaws of the states furnished the rule of decision in respect to the Hen of jlldgments and decrees rendered in the federal courts upon the land of the debtor; and since the passage of the act underconslderation it has been twice affirmed by this court as a matter of history that the act was passed to confirm the view expressed in those decisions. Beet'S v. H augMon. 9 £6t. 361; Ross v. J)uval, 13 Pet. 64. Perfect coincidence of opinion upon the SUbject appears tohave prevailed throughout between congress and the court, and on all sides appar: ently the endeavol'has been to assimilate the proct'edings in the fedl'ral courts for the lev,}'ing of executions issued on jUdgments and decrees for the paymentof money to those prevailing in the courts of the states." In the same case the court said: "The course of legislation shows that it has always been the intention of congress to prevent a creditor suing in the federal courts from obtaiuing an advantage over another creditor suing in the state courts." 2 Black, 441. And it was early decided "that congress, in adopting the processes of the states, also adopted the modes of process prevailing at that date in the courts of the several states in respect to the lien of judgments within the limits of their respective jurisdictions." Brown v. Pierce, 7 Wall. 217. and cases cited. A question having arisen as to whether the adoption of the processes of the several states adopted the state laws. on the subject of the duration of judgment liens, congress, on the 4th of July, 1840, passed an act on that subject, which is now section 967 of the Revised Statutes of the United States, and readsas follows: "Sec. 967. JUdgments and decrees rendered in a circuit (Ir district court within any state shall cease to be liens on real estate or chattels real in the Bame man ner and at like periods as judgments and decrees of the courts of Buch state cease by law to be liens thereon." Upon the passage of this act, the rule in the state and federnl courts as to the creation and duration of a judgment lien was the same,-that is, the state laws regulated the creation and duration of the lien of judgments in both courts, but the rule was not the same as to the territorial extent of such lien, and for this reason: In those. states in which judgments were liens on the lands of the debtor, the lien was restricted to the tenitorial jurisdiction of the COUlt rendering the judgment, usually a county. But the statutes of those state;; usually provided a mode of extending the lien of a judgment of a slate court to any county in the state by filing a transcript of the judgment in the eounty clerk's office;
but those statntee, as a rule, did not make a like provision for filing and entering transcripts of federal judgments. If, therefore, in those states the lien of a judgment in a federal court was restricted to the county in
which the court was held and the judgment rendered, the suitor in the state court would have ah advantage over the suitor in the federal court in the matter of the judgment lien, because, while the suitor in the state court could extend the lien of his judgment to any other county in the state by filing a transcript of it in the clerk's office, the suitor in the federal court had no such right. In this condition of things the courts held that the lien of judgments in the federal courts was, by an-
alogy to the state laws, eo-extensive with the territorial jurisdiction of such courts·. Den v. Jemes, 2 McLean, 78; Ma,88ingiU v. Dawns, 7 How. 760; Brmon v. Pierce, 7 Wall. 217; Williams v. Benedict, 8 How. 107; Barth, v. Makeever, 4 Biss. 210; TrapnaU v. Richardson, 13 Ark. 543; Byers v. Fowler, 12 Ark. 218. In Massingill v. Dawns, iWlpra, the court said: "In those states where the judgment or the execution ot a state court creates a lien only within the county in which the judgment is entered it has net been doubted that a similar proceeding in the circuit court of the United States would create a lien to the extent of its jurisdiction. This has been the practical construction of the power of the courts of the United States. whether the lien was held to be created by the iS8uinll of process or by the express statute. Any other construction would materially affect, and in some degree subvert, the jUdiciRI power of the Union. It would place suitors in the state courts in a much better condition than in the federal courts." The last sentence in this extract has reference to the fact (as shown elsewhere in the opinion) that the state law made provision for extending the lien of judgments of the state flourts by filing an abstract of the same in the clerk's office of any other county, but made no such provisto judgments of United States courts; and suitors, ion with therefore.. in the state courts would be "in a much better comlition than in the federal courts," if the lien of judgments in those courtfl was restricted to the county in which they were rendered. Before the case last cited was decided, the difficulty in the way of putting the liens of judgments in the two judsdictions on an equal footing as to the territorial extent of the lien had been pointed out by Mr. Justice McLEAN, sitting in the circuit. He said: ."The law of the state, which extends the lien of a jndgment of a circuit court of the state to any 'county within which the record of such jUdgment shall be recorded, can have no application to tins court. We have no right under it to require our judgments to be recorded by any clerk of the state court. * * * If it shall be deemed important to have the records of the jUdgments of this court recorded in the county where the laQds of the defendant are situated, it may be required by act of congress, or by a rule of this court, if the law of the state shall require the clerks to make sueh record." ben v. Jones, 2 McLean, 88, 85.
lt is quite obvious that if congress or the federal courts had possessed the power to require the clerks of the state courts to enter on the records of those courts the judgments of the federal courts as was provided in
DARTMOUTH SAY. BAXK V. BATES.
the case of judgments of the state courts, that the rule that the lien of a judgment of a federal court was co-extensive with the territorial juriF!diction of the court would never have been adopted. .The process acts did not cover the case, and could not be made to do so. If the courts held the lien was restricted to the county in which the judgment was rendered, this would give a preference to suitors in the state courts, because they could extend the lien of their judgments beyond the county in which they were rendered by filing transcripts in the clerk's office of other counties; but suitors in the federal courts were denied that privilege. The rule, therefore, was adopted of making the lien co-extensive with the jurisdiction of the courts. This rule resulted in giving suitors in the federal courts a preference over those in the state courts as to the territorial extent of the lien, and worked a hardship on the citizens generally. The mass of the people relied confidently on the recordR in the clerk's office of their county disclosing all judgments that were liens on property in the county. Most people were ignorant of the all-pervading lien of a judgment in a federal court, and they bought and sold lands on the faith of what the county records disclosed. The result was that cases of great hardship occurred. Persons who bought and paid for lands on the faith that the records in the countv clerk's office showed the condition of the land with reference to judgm"ent liens thereon, afterwards lost their lands by reason of the liens of judgments in federal courts held in some other county, and often at a distance of hundreds of miles from the county in which the lands lay. To. correct these hardships, and to put the suitors in the state and federal courts on an equal footing in respect of the territorial extent of the liens of judgments in the two jurisdictions, in so far as congress could do it, the act of August 1, 1888, (25 U. S. St. 357,) was passed. That act provides"That jUdgments and decrees rendered In a circuit or district court of the United States within any state shall be liens on propert.r throughout such state in the same manner and to the same extent, and under the same conditions only, as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: provided, that whenever the laws of any state require a jUdgment or decree of a state conrt to be registered, recorded, docketed, indpxed, or any other thing to be done, in a particular manner, or in a certain office or county or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever, and only whenever, the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed. or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state. * * * Sec. 3. :Nothing herein shall be construed to require the docketing of a jUdgment or decree of a United States court, or the filing of a transcript thereof, in any state ollice within the same county or parish in the state of Louisiana in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county." The first clause of the act places judgment liens in a federal court' on the same footing in all respects as a judgment lien.in a state court of general jurisdiction. But the power of congress was not adequate to the task of extending the territorial operation of a judgment lien in the mode
JprQv,ided 1:>ystate laws for 'II judgment in the statecou'd. Congress was confrollted with ,the difficulty pointed out by Mr.. Justice McLEAN,the Jaw of a .state might provide for filing and docketing a transcript of :a judgment of a state court in the clerk's office of, any county in the state, and in this way extend the. lien of a judgrrientbeyond the county ,in which it was rendered. But there was no federal clerk's office, or ,other like office, in each' county in. the state in which a jungment rendered ina federal court could be docketed ; and .'oongress oOllld not make it obligatory on the state clerka to docket and enter;ajudgment of a federalcourt on their records. But it was entirely competent for the state to require her clerks to perform this service, and the proviso in section ,1 of the act dllolares, in legal effect, that when the laws of II state provide for docketing in her clerks' offices, or other offices, the judgments of federal courts, in the same manner that judginents·in her own courts may be docketed, then, and not before, the territorial' extent (in other respects they were already the same) of the lien of-a judgment in a federal court in that state shall be the same as that of a judgment in the state court. Where the laws of a state provide .for· docketing the judgments ofitsown courts in any county in the state;but do not make a like .provision as to the judgments of the federal court, the act of congressianot operative; and in such states the lien ofa judgment of a federalcourt continues to be co-extensive with its territoriul jurisdiction. The law of this state conforms exactly to the requirements of the act of congress, and makes it operative in this state. The statute reads as fol": lows: "Judgments of courts 'of record of this state. and of courts of the United States rendered Within this state, shall be Iiells on the real estate of the debtor within the county in which the jUdgmf'nt is rendered from the first day of the term at which the judgment is rl:'ndered; but. judgmellts by conf(·ssion, and judgments rendered at the same term 'd IIring which the action was commenced. shall bind such lands only ,from the day on which such jUdgment was rendered.. An attested copy of the jourual entry of any judgment, together with a statl:'ment of the costs taxed against the debtor in the. cllse. may be filed in the office of theclel'k of the of any county, and such judgment shall be a lien' on the l'eal eslate of the debtor within that county from the date of filing such COP)·. . The clerk shall enter such judgment on thl' appearance and j:lligment dockets in the same manner as if rendered in the court of which he is derk.Executions shall only be issued from the court in which the j udffment is rendered. " Gen. St. Kan. 1l:l68, c. 80, § 419. Under this statute it is plainly the duty of ahy clerk of the district court of the state, when th,e journal entry of a judgment rendered in a federal court held in this state is filed in his office, "to enter such judgment on the appearance and jurlgmentdockets in the same manner as if rendered in the court of which he is clerk." The words "any judgment" in the second sentence of the section obviously, and according to every jl'ul1:1for .the construction of statutes, include the judgments specifically mentiolled intbe first sentence of the section. ltmay or may not include others,butit undoubtedly includes them;;, Section 3 ofthe act pf c.QDgr:eSS expressly that the act shall not be construed to re-
quire the filing ofatranscript ora judgment of a United States courtin' the county clerk's office of the county in which the judgnjent was rendered, in order that such judgment may be a lien on any property within States court in such county. The result is that a judgment in a this state is a lien on the lands of the debtor only in the county in which the court wali held and the judgment rendered j but the lien may be extended to any other county, in the mode provided by section 419 of the General Statutes oftbe state above quoted. , . The defendants' judgment was not a lien on the lands of the debtor in Wabaunsee county, and the plaintifl' is entitled to an injunction, 88 prayed for in its hill. Decree
Oourt, D. MasBach'UBett8. December 28, 1890.) .
PICON. . ..
L CUSTOIlIS DUTIE&-CoNSirBUOTION 011'
Tbe preparation known as "Amer Picon, " which is prepared by Picon & Co. according to a private, formula used by them, which contains from 30 to 40 per cent: of&1cohol, and wllich is advertised as a specific against ID,alaria, and also as a tonio j is .dutiable under ,act Cong. March 3, 1883, Schedule H, as "bitters epntaining spirits, " and not under Schedule A of said act, as a "proprietary preparation, " though it is not used as an intoxicating beverage. . The glass bottles cQntaining "Amer Picon" are Q.utiable under said Schedule B as bottles containing spirituousliquora.· . .'
At Law. This was an action at law by Hennan A.Curiel against Alanson W. Beard, collector of customs for the port of Boston, and was heard by the court without a jury. The facts in the case were agreed to be as follows:"
"That plaintiff, on September 30, 1889, imported into the port of Boston from Rouen, France, the prepal'ation known as' Amer !'icon,' and entered it for warehouse at 50 pl'r cent. ad valorem, under the clause. in Schedule, A of, the act of' March 3, 1883. prOViding for' proprietary preparatioOfi; '. tl)at collectorclassilied said merch,mdise as 'bitters containing at two dollars a gallon, under theclanse in ule H of said act, providing for · cordials" liquors, arra<:k. absinthe, kirschwasser, ralalia, and other similar spirituoui.\ beverages or bitters containing spirits;' that due prutest and appeal were made, and that the secretary of the treasury 4ecideq that said merc!lf!nqise was duly assessed with duty at two dullars a gallon, and affirmed the decision of the collector; tha:tthel1eupon plaintiff withdrew froin warehouse partot sl1id merchandise for consumption, paid dutil'S thereot) at the rate of two dollars ai gallon, and duly brought suit to recover the excess of duties paid by him; th'at said · AUler Picon'. is prepared by Picon & Co., Rouen, France, and ommended by them to the public as a remedy orspecitic against malaria or feVer affecting the human'body: that it is pl'epated by them as manufacturing Chemists·.according to a p/.'ivate formula owned by them, and put up in glass bottles in which is blown the words' Arner Picon,' Phillipsville; that on eacb