Opinion of the court.

the defendant in the attachment, having died on the 25th of November, the writ of fieri facias, issued and tested on the 21st of December following, without any scire facias against his heirs or terre tenants, was necessarily void.* This being a principle of the common law, was introduced into Florida by the act of the Legislative Council, passed June 29, 1823, § 1.t

Mr. Justice DAVIS delivered the opinion of the court.

The solution of one question presented by the record is decisive of this case. Does the writ of fieri facias, tested and issued after the death of the party against whom the judgment is rendered, confer power on the ministerial officer to execute it? That St. Maxent was the owner of the lands in controversy at the time of his death, and the plaintiffs below are his heirs-at-law, is admitted; but it is claimed that the title was divested by certain proceedings in attachment against him in the courts of Florida, which ripened into a judgment while he was alive. It is a well-settled principle of law, which has often received the sanction of this court, that the decree or judgment of a court, having jurisdiction, is binding until reversed, and cannot be collaterally attacked. But the defect in this case occurs after the judgment, and is fatal to Mitchell's title, for purchasers at a judicial sale are not protected, if the execution on which the sale was made was void. Void process confers no right on the officer to sell, and all acts done under it are absolute nullities.

The writ of fieri facias on which Mitchell rests his title, was tested after the death of St. Maxent; and, according to a familiar rule of the common law, it was therefore void. The death of a defendant, before the test of an execution, compels the plaintiff to sue out a writ of scire facias, “for the alteration of the person altereth the process." The heirs, devisees, and terre-tenants of the deceased must have

Erwin's Lessee v. Dundas, 4 Howard, 58; Woodcock v. Bennett, 1 Cowan, 738. † Acts, &c.,

p. 136.

Bacon's Abridgment, Title “Scire Facias.”

Opinion of the court.

notice before an execution can regularly issue, for they are the parties in interest, and should have an opportunity to interpose a defence, if any they have, to the enforcement of the judgment. Erwin's Lessee v. Dundas* is an authority in point, and it is unnecessary to refer to any other.

But it is contended that the doctrines of that case have been overturned by the decision of Taylor v. Doe, reported in 13th Howard. This is an erroneous view of that decision. The court held, in that case, that it is not necessary to revive a judgment by scire facias, where an execution regularly issued during the life of the defendant had been levied on land, but that the officer who had made the levy could proceed to sell, under a venditioni exponas. That writ was regarded as a completion of the previous execution, by which the property had been appropriated, and not as an original or independent proceeding.

It was in the power of the legislature of Florida to have changed the rule on the subject of the test of process; but, having failed to do it, and having adopted the common law of England, the question in issue must be decided by the rules of the common law.†

But it is insisted that the rules of the common law only attach to suits prosecuted in the ordinary way, and do not apply where the proceedings are commenced by seizing property under a writ of attachment. This is a novel view, for the law of attachment, being in derogation of the common law, courts are not inclined to extend its provisions beyond the requirements of the statute authorizing it. In Florida the service of the writ of attachment binds the property, and retains it in custody of the law, for the benefit of the attaching creditor, if he obtains a judgment and execution, and the property is to be disposed of as in other cases of property levied upon and taken in execution.‡

As an execution is required, and the law is silent about the manner of its issue, it follows that it is to be tested and

* 4 Howard, 58.

Id. 1823, p. 40.

Laws of Florida, 1822 to 1825, p. 136.

Statement of the case.

issued as writs of fieri facias are on judgments obtained through the usual methods of the common law. The judgment of the court below is

AFFIRMED WITH COSTS.

PEOPLE V. THE COMMISSIONERS.

1. Shares in banks, whether State banks or those organized under the act of June 3d, 1864, "to provide a national currency," &c., are liable to taxation by the State under certain limitations (set forth in section forty-first of the act), without regard to the fact that the capital of such banks is invested in bonds of the United States, declared, by statutes creating them, to be exempted from taxation by or under State authority. Van Allen v. The Assessors,* affirmed.

2. If the rate of taxation by the State on such shares is the same as, or not greater, than upon the moneyed capital of the individual citizen which is subject or liable to taxation; that is to say, if no greater proportion or percentage of tax on the valuation of the shares is levied than upon other moneyed taxable capital in the hands of its citizens, the shares are taxed in conformity with that proviso of the forty-first section, which says that they may be assessed, "but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State."

THESE were two cases which arose upon a certiorari, prosecuted, the one by Denning Duer, as relator, the other by Ralph Mead, in the same way, out of the Supreme Court of the State of New York, and directed to the Commissioners of Taxes and Assessments for the City and County of New York, the defendants in error. The relator in the first case was a holder of certain shares of stock in the National Bank of Commerce in New York, a banking association organized under the National Bank Law. The relator in the second case held certain shares in the Corn Exchange Bank, in the city of New York, incorporated under the laws of the State. These shares, in both banks, had been assessed in the year 1866, for the purposes of taxation under the

* 3 Wallace, 573.

Statement of the case.

State laws, by the commissioners, as personal property of the relator, in the place in which the banks were located. In justification of their proceedings the commissioners relied upon:

First. The enactments, in the form of provisos, in the forty-first section of the National Bank Law, passed June 3d, 1864,* in these words:

"Provided, That nothing in this act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed, by or under State authority, at the place where such bank is located, and not elsewhere; but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.

of

"Provided further, That the tax so imposed under the laws any State upon the shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under authority of the State where such association is located."

Secondly. An act of the State of New York, passed April 23d, 1866,† in these words:

"SECTION 1. No tax shall hereafter be assessed upon the capital of any bank or banking association organized under the authority of this State or of the United States; but the stockholders in such banks and banking associations shall be assessed and taxed on the value of their shares of stock therein; said shares shall be included in the valuation of the personal property of such stockholder in the assessment of taxes at the place, town, or ward where such bank or banking association is located, and not elsewhere, whether the said stockholder reside in said place, town, or ward, or not; but not at a greater rate than is assessed upon other moneyed capital in the hands of individuals in this State."

The case was heard by the Supreme Court of New York,

* 13 Stat. at Large, 99.

† Laws of New York, for 1866, vol. 2, p. 1647.

Argument for the plaintiffs in error.

on the return of the commissioners, as upon a demurrer thereto. The return stated that the commissioners did assess the relator upon the value of said shares, and included the same in the valuation of his personal estate.

That they made no allowance or deduction on account of investments by the bank in any securities of the United States.

That such a deduction or allowance was made in assessments upon insurance companies and individuals.

The Supreme Court gave judgment for the commissioners, which judgment the Court of Appeals affirmed.

The cases were now here for review, under the twentyfifth section of the Judiciary Act; two questions, among others brought up but not considered by this court, being:

1. Whether the New York statute, of 23d April, 1866, was valid so far as it attempts to authorize the taxation of bank shares where the capital of such bank is invested in United States securities, exempt from taxation under the acts of Congress? a question argued separately in respect to State banks, and to those organized under national laws.

2. Whether the taxation of the shares of the several relators was not invalid, for the reason that an illegal discrimination was made in favor of other State corporations and individuals, citizens of said State?

Besides the two cases reported by name here, there were eight or ten cases in substance very similar to them, the cases being represented by different counsel.

The various relators, plaintiffs in error, were represented by Messrs. W. M. Ecarts, B. D. Silliman, J. E. Burrill, and E. S. Van Winkle.

On the other side were, Messrs. C. O'Connor, A. J. Parker, R. O'Gorman, and W. Hutchins.

For the relators, plaintiffs in error:

I. The case of Van Allen v. The Assessors,* adjudged, in fact, no more than that, under the legislation of New York,

* 3 Wallace, 573.