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Act of May 20, 1826, ch. 124, 4 Stat. L. 184. “May” means at the
the plaintiff's option. “He has a right to concurrent execution all over the state. It is impossible to give the words of the statute effect unless every writ is allowed to run in all the districts in the same state. The formal direction to one marshal is of no consequence, since the same Act of Congress which enlarges the territorial power of the writ enlarges the direction correspondingly.” Prevost v. Gorrell, (1877) 25 Pittsb. Leg. J. (Pa.) 125, 19 Fed. Cas. No. 11,402. See also Treadwell V. Seymour, (1890) 41 Fed. Rep. 579.
The lien of a judgment obtained in one of
the districts of a state operates from the date of the judgment upon real estate situated in all parts of the state. Prevost t. Gorrell, (1877) 25 Pittsb. Leg. J. (Pa.) 125, 19 Fed. Cas. No. 11,400.
Suit brought outside district of residence. - The provisions of this statute do not give a corporation complainant the right to bring suit in a district in which it is a nonresident without giving security for costs, as required by state statute adopted by the rules of the court. Lyman Ventilating, etc.,
etc., Co. Southard, (1875) 12 Blatchf. (U. S.) 405. See also Miller v. Norfolk, etc., R. Co., (1891) 47 Fed. Rep. 264.
Sec. 986. [Executions in favor of United States to run in every State and Territory.] All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State, or in any Territory, but shall be issued from, and made returnable to, the court wherein the judgment was obtained. [R. S.]
Act of March 3, 1797, ch. 20, 1 Stat. L. 515. bia, at least until a different interpretation
District of Columbia. -- " Its sphere of has been judicially placed upon it." (1874) operation was, originally, co-extensive with 14 Op. Atty.-Gen. 384. the limits of the United States, and was Must be authority of law. - Process of a manifestly intended by Congress so to be; Circuit Court cannot be served outside of the and I think it may with propriety be taken district in which it is established without the to have the like operation throughout the authority of law. Toland v. Sprague, (1838) entire bounds of the United States, and ac 12 Pet. (U. S.) 300. cordingly to extend to the District of Colum
Sec. 987. [Execution stayed on conditions.] When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be thereby rendered void. įR. S.]
Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 83; Rules of court, prescribing the time and Act of March 3, 1865, ch. 86, 13 Stat. L. 501. mode in which motions for new trial must be
Time to file motion. -- This section “re made, must be observed. Henning v. Western lates only to method of staying execution Union Tel. Co., (1890) 41 Fed. Rep. 864. pending new trial, and does not limit the time A bill of exceptions may be allowed and in which motions for new trial may be other filed at the term when the motion for a new wise filed." Felton v. Spiro, (C. C. A. 1897) trial is finally acted on, even though such 78 Fed. Rep. 581. See Rutherford v. Penn action is taken at a term subsequent to the Mut. L. Ins. Co., (1880) 1 Fed. Rep. 456; entry of judgment. Woods v. Lindvall, (C. Emma Silver Min. Co. v. Park, (1878) 14 C. A. 1891) 48 Fed. Rep. 73. Blatchf. (U. S.) 411.
“An order granting or refusing a new trial The trial court has no jurisdiction to grant which the court has the jurisdiction or power a motion for a new trial and to avoid a judg to make, is discretionary, and cannot be rement rendered, after the expiration of the viewed by writ of error or appeal in the fedterm at which it was rendered, in the absence
But the question of any motion or notice of motion or other
whether or not the court had the jurisdiction proceeding looking to its vacation during that
or power to make an order granting or refusterm. Manning r. German Ins. Co., (C. C. A.
ing a new trial and avoiding a former judg
See also Den t. 1901) 107 Fed. Rep. 52.
ment is always reviewable in the federal M'Allister, (1823) 4 Wash. (U. S.) 393.
courts by a writ of error or an appeal chal45
lenging the order, because it goes to the effect and finality of the judgment itself.” Manning 1. German Ins. Co., (C. C. A. 1901) 107 Fed. Rep. 52.
On a reference by consent, the consent and the order providing that the cause be referred to a referee to hear and determine all the issues thereof, and that the report of the referee have the same effect as a judgment of the court, the court has no authority to grant a motion for a stay of proceedings under this section after judgment has been duly entered upon the report of the referee, notwithstanding the consent and order provide that judgment shall be entered “the same as if the cause had been tried before the court.” The scope of this section is limited to cases where there
has been either a verdict or a finding of the court upon the facts. Neafie v. Cheesebrough, (1874) 14 Blatchf. (U. S.) 313. See Chicago Fourth Nat. Bank v. Neyhardt, (1876) 13 Blatchf. (U. S.) 393. But see Robinson v. Mutual Ben. L. Ins. Co., (1879) 16 Blatchf. (U. S.) 194.
Judgment, pending motion, not final. While a motion to stay execution is pending, the court has not lost its jurisdiction over the case, and having power to grant the motion, the judgment is not final for the purpose of taking out a writ of error. Kingman 1. Western Mfg. Co., (1898) 170 U. S. 675. See Cambuston v. U. S., (1877) 95 U. S. 285; Brown v. Evans, (1883) 18 Fed. Rep. 56.
Sec. 988. [When judgment debtor entitled to a continuance of one term.] In any State where judgments are liens upon the property of the defendant, and where, by the laws of such State, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, defendants in actions in the courts of the United States, held therein, shall be entitled to a stay of execution for one term. [R. S.]
Act of May 19, 1828, ch. 68, 4 Stat. L. 281.
Sec. 989. [Execution not to issue against officers of revenue in cases of probable cause, etc.] When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury. (R. S.]
Act of March 3, 1863, ch. 76, 12 Stat. L. tary of the treasury, and has paid it into the 741.
treasury, it is the duty of the court to grant Notice to the government. A judgment a certificate to that effect. Cox v. Barney, and certificate, under this section, properly (1877) 14 Blatchf. (U. S.) 289. See dissentobtained, create under the law an obligation ing opinion in Lowe v. Kansas, (1896) 163 against the government, for, by relieving the U. S. 81. officers from liability, in effect and practi The judge who tried the case is not the cally, a judgment is rendered against the only person to grant the certificate, but anUnited States. If, for irregularity or other other than the one before whom the verdict cause, payment is refused, the Court of was rendered may hear the application and Claims may take jurisdiction. Where an ac grant the certificate. The statute provides tion was brought against late officers of the for the making of the certificate by the court internal revenue for a trespass, judgment and not by any particular judge.
Cox v. obtained, and a certificate of probable cause Barney, (1877) 14 Blatchf. (U. S.) 289. But given, the government was not concluded by see Faber v. Barney, (1869) 6 Blatchf. (U. S.) the judgment, where no department, bureau, 305. officer, or agent of the government had any A separate finding of probable cause is evinotice or knowledge of the judicial proceed dently contemplated. Dissenting opinion in ings; and the fact that the defendants went Lowe v. Kansas, (1896) 163 U. S. 91. out of office two or three years before suit was The accounting officers of the government brought shows that there was not even con have no jurisdiction to scrutinize and modify structive notice. Dunnegan's Case, (1881) 17 a judgment rendered by a court adjudging Ct. Cl. 247. See Flanders v. Seelye, (1881) the payment by the United States of a certain 105 U. S. 718.
sum of money with interest. New York Cent., It is not discretionary with the court to etc., R. Co. v. U. S., (1888) 24 Ct. CI. 22. give a certificate, but, when the collector has Time of application for certificate. - Where exacted money in the performance of his the practice has grown up of not asking for official duty, under the directions of the secre a certificate of probable cause until the time
came around for the payment of the money out of the treasury, laches or delay on the part of the government or collector cannot be charged where the application for the certificate is not made until after failure to collect from the treasury department and the issue of an execution against the property of the collector. “ The certificate is to be granted not only to prevent the issuing of an execution against the collector, but to stay one already issued.” Cox v. Barney, (1877) 14 Blatchf. (U. S.) 289.
But in Faber v. Barney, (1869) 6 Blatchf. (C. S.) 305, the court said that where no application for the certificate was made at the trial, nor until the expiration of nearly two years, and, after a special motion for execution is noticed, it is then made before a judge who took no part in the trial, and upon affidavits, the application for a certificate under such circumstances comes too late.
Interest. — In an action against a collector to recover excessive fees exacted at the custom house, “where there is a judgment and a certificate of probable cause, and thus a case for payment out of the treasury under section 989, and then, by direction of the government, a writ of error is taken which operates as a stay, interest on the judgment during the stay ought to be allowed, and the statutes not only do not forbid such allowance, but permit it.” Schell v. Cochran, (1882) 107 U. S. 628. See Schell v. Dodge, (1882) 107 U. S. 629.
Interest cannot be recovered from the United States for the time from the rendering of the judgment until the certificate of probable cause was given. Before the certificate is given, the government is under no obligation, and the secretary of the treasury is not at liberty, to pay; but if the certificate is given, the claim of the plaintiff in the suit is practically converted into a claim against the government. U. S. v. Sherman, (1878) 98 U. S. 565. See Hedden v. Iselin, (1887) 31 Fed. Rep. 266.
But in White 1. Arthur, (1882) 10 Fed. Rep. so, the court said that interest cannot be adjudged against the government unless expressly allowed by statute, nor in such case can the interest be recovered from the collector, though, in the absence of a certificate, judgment, with interest and costs, may be recovered from the collector. See New York Cent., etc., R. Co. v. U. S., (1888) 24 Ct. Cl. 22.
Statute of limitations. — The collector should be allowed to plead the statute of limitations in bar to plaintiff's right to recover duties alleged to have been illegally exacted, as, where it might happen that the court before which the trial may be had should deem the case, as developed on the trial, one in which a certificate of probable cause ought not to be granted, the defendant should be allowed to set up any defense to which he would be entitled. Andrae v. Redfield, (1875) 12 Blatchf. (U. S.) 407, affirmed (1878) 98 U. S. 225. See Crookes
Maxwell, (1867) 6 Fed. Cas. No. 3,413, (1869) 6 Blatchf. Upon a motion for an injunction to re
strain a collector from pleading the statute of limitations in bar of an action to recover duties alleged to have been illegally exacted, a stipulation that, whatever facts might be developed on the trial, a certificate of probable cause might be granted, cannot be permitted. “ It would be a fraud upon the government to permit parties, by stipulation, to cast upon the government officers the duty to pay a judgment recovered against an individual. Whether a certificate of probable cause ought or ought not to be granted, is for the determination of the judicial tribunal, upon the facts developed on the trial.” Andrae v. Redfield, (1875) 12 Blatchf. (U. S.) 407, affirmed (1878) 98 U. S. 225.
Raised by demurrer. " The bar of a statute of limitation may be raised by demurrer when there is no exception to the statute, and the petition shows the bar of the statute complete.” Sinking Fund Com’rs v. Buckner, (1891) 48 Fed. Rep. 533.
“ Other proper officer of the government." - A certificate cannot be given that the collector acted under the directions of the secretary of the treasury, or other proper officer of the government,” where it appears that he acted pursuant to the request of a revenue agent, who was instructed to make the request by the chief clerk of a supervisor. “The plain intent of the statute
is that the direction to the collector shall shield him only when given by some officer of the government who has the undoubted authority to direct. Unless the collector is under some obligation to heed the instructions, he is not protected.” Frerichs v. Coster, (1885) 22 Fed. Rep. 637.
A postmaster was sued in equity, and adjudged to pay personally a sum of money, for the infringement of a patent, committed by the use in the post-office of an apparatus for stamping letters with a postmark and canceling postage stamps, in infringement of the patent. A certificate could not be granted under this section, as a postmaster is not an “ officer of the revenue within the meaning of this section. Campbell v. James, (1880) 3 Fed. Rep. 513.
The final judgment” referred to in this section is the judgment as it stands after its affirmance by the Supreme Court, and after the court below has rendered such judgment as the mandate of the Supreme Court requires. Schell v. Cochran, (1882) 107 U. S. 625.
Seizure of vessel. – A certificate of probable cause does not protect the collector from a judgment for damages under this section for the seizure of a vessel upon the supposition that it was subject to duty. Such a case falls under this section and not under section 970, R. S. Section 970“ was intended to be confined to cases where the collector makes a seizure, followed by a suit or prosecution in the name of the United States for a penalty or forfeiture arising from an illegal act of the persons in charge of the vessel, and was not intended to be applied where a vessel is simply detained under section 2964 for a nonpayment of duties.” The Conqueror, (1897) 166 U. S. 110.
(U. S.) 468.
Sec. 990. [Imprisonment for debt.] No person shall be imprisoned for debt in any State, on process issuing from a court of the United States, where, by the laws of such State, imprisonment for debt has been or shall be abolished. And all modifications, conditions, and restrictions upon imprisonment for debt, provided by the laws of any State, shall be applicable to the process issuing from the courts of the United States to be executed therein; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such State. [R. S.]
Act of Feb. 28, 1839, ch. 35, 5 Stat. L. this. If a defendant is not liable to imprison321; Act of Jan. 14, 1841, ch. 2, 5 Stat. L. ment for a debt, he should not, for the 410; Act of March 2, 1867, ch. 180, 14 Stat. stronger reason, be liable to imprisonment in L. 543.
an action where the result can only be a Debtors of the United States. The United judgment for money." Stone v. Murphy, States, as plaintiffs in an action for debt, (1898) 86 Fed. Rep. 158. are within the operation of insolvent debtor An action for damages for personal inlaws. And this is so notwithstanding Con juries was held in Hanson v. Fowle, (1871) gress has given to the President and the 1 Sawy. (U. S.) 497, not to be governed by secretary of the treasury power to discharge the provisions of this section. While a person from prison poor debtors of the United States who wilfully injures another is liable in dam(see sections 3471 and 3472, R. S.). Such ages, and may, therefore, in a sense, be called acts are cumulative. U. S. v. Tetlow, (1872) the debtor” of the party injured, and the 2 Lowell (U. S.) 159. See also U. S. v. Walsh, sum due for the injury “ debt," he is in fact (1867) Deady (U. S.) 281; Moan v. Wil a wrongdoer, a trespasser, and does not come marth, (1847) 3 Woodb. & M. (U. S.) 399; within the reason of the rule which exempts U. S. v. Knight, (1840) 14 Pet. (U. S.) 301. an honest man from imprisonment because
But in U. S. v. Hewes, (1839) Crabbe (U. he is pecuniarily unable to pay what he has S.) 307, it was held that the United States promised. and their rights and remedies against their
“ The word "debt' is of very general use, debtors were not affected by, and included in, and has many shades of meaning. Looking the provisions of the Act of Congress of Feb. to the origin and progress of the change in 28, 1839. See U. S. v. Wilson, (1823) 8 public opinion, which finally led to the aboliWheat. (U. S.) 253.
tion of imprisonment for debt, it is reasonable “The intent of R. S. secs. 990, 991, is that to presume that this provision in the state in civil actions for debt the defendant shall constitution was intended to prevent the usebe subject to imprisonment, and be released less and often cruel imprisonment of persons, therefrom, precisely as he would be under the who, having honestly become indebted to anlaw of the state." Low v. Durfee, (1880) 5 other, are unable to pay as they undertook Fed. Rep. 256. See Mewster v. Spalding, and promised. In this view of the matter the (1853) 6 McLean (U. S.) 24.
clause in question should be construed as if A state court has no authority, under a it read: There shall be no imprisonment state insolvent law, to release from jail one for debt arising upon contract express or imheld on bail under a judgment rendered in an plied, except,' etc. Such is substantially the action at law by a federal court.
language employed in the legislative acts of this Act [of 1839), whatever was to be done most of the states, abolishing imprisonment to assimilate the effect of process out of the for debt; and there can be but little doubt courts of the United States, to the effect of that this was the end which the framers of process out of the state courts, was to be done the constitution had in view, as well as the in and by the courts of the United States, popular understanding of the clause, when acting on their own process, by changing its the instrument was adopted at the polls. requirements, or controlling its effects upon General or abstract declarations in bills of motion, and not by orders or decrees of state rights are necessarily brief and comprehencourts operating thereon.” Sadlier v. Fallen, sive in their terms. When applied to the de(1854) 2 Curt. (U. S.) 190. See Duncan v. tails of the varied affairs of life, they must Darst, (1813) 1 How. (U. S.) 301; U. S. Bank be construed with reference to the causes v. Tyler, (1830) 4 Pet. (U. S.) 366; McNutt which produced them and the end sought to v. Bland, (1844) 2 How. (U. S.) 9; Matter of be obtained. A person who wilfully injures Farrand, (1867) 1 Abb. (U. S.) 140.
another in person, property, or character, is A judgment for tort in a federal court is liable therefor in damages. In some sense he not a debt ” within the meaning of the pro may be called the debtor of the party injured, visions of this seetion. Stroheim v. Deimel, and the sum due for the injury a debt. But (C. C. A. 1897) 77 Fed. Rep. 802. See also he is in fact a wrongdoer, a trespasser, and U. S. v. Walsh, (1867) Deady (U. S.) 281. does not come within the reason of the rule
An action for damages for personal in which exempts an honest man from imprisonjuries, when it ripens into a decree for a sum ment because he is pecuniarily unable to pay of money, becomes a debt against the defend what he promised to.” U. S. v. Walsh, (1867) ant in the decree. “ Such a claim is not a Deady (U. S.) 281. debt; it is less than a debt; and it cannot be Unliquidated damages or contingent debt. said that the reason for abolishing imprison “ The statute and the [admiralty] rule ment for debt does not apply in a case like refer only to imprisonment for debt, and do
not affect the power of the court to issue a warrant of arrest as process for compelling defendants to respond to a clain for unliquidated damages, which is not a debt, any more than it restricts the power of the court to imprison defendants for nonpayment of fines or by way of punishment for contempt. The word 'debt,' when used in a statute, without some plain or explicit declaration making it applicable thereto, does not include taxes nor claims for unliquidated damages. The legal definition of the word is opposed to unliquidated damages, or a liability in the sense of an inchoate or contingent debt, or an obligation not enforceable by ordinary process. Bolden v. Jensen, (1895) 69 Fed. Rep. 745. But see The Carolina, (1876) 14 Fed. Rep. 424; The Bremena v. Card, (1889) 38 Fed. Rep. 144; Chiesa v. Conover, (1888) 36 Fed. Rep. 334.
Actions for penalties are civil actions, as a penalty, when incurred by the transgression of a statute, becomes immediately a debt, and upon an information filed by the United States attorney charging an offense for which the statute prescribes a penalty but does not make a crime, a bench warrant will not be issued for the arrest of the defendant, where the Constitution and laws of the state have abolished imprisonment for debt. U. S. v. Younger, (1899) 92 Fed. Rep. 672.
An action for the value of merchandise entered in violation of sections 2839 and 2864, R. S., by which, in case goods are entered by means of a false invoice, the goods or their value are declared forfeited to the United States, is neither an action to recover a fine or penalty,” nor “to recover damages for fraud," and where the state law prohibits arrest in a civil action except in such cases, an execution against the person of the defendant cannot issue. U. S. v. Moller, (1878) 10 Ben. (U. S.) 189.
In an action for debt, for the value of merchandise forfeited for entry by means of false and fraudulent practices and appliances under section 2864, R. S., execution cannot issue against the bodies of the defendants for the damages and costs, where the law of the state "allows process to issue against the body in actions, (1) to recover a fine or penalty;
(4) in an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability.” The execution cannot be upheld on the ground that the recovery was of a penalty, nor can the action be said to be one on a contract, either express or implied. U. S. v. Reid, (1883) 17 Fed. Rep. 497.
Contempt Bankruptcy proceedings. A district court has power to punish a bankrupt for contempt of court, as manifested by his refusal to obey an order of court, made after due hearing of the parties, directing him to deliver or to pay the assets of the bankrupt estate to the trustee in bankruptcy. Such an order is not for the payment of a debt, but for the delivery by the bankrupt of the assets of his estate to his trustee in bankruptcy. In re Schlesinger, (C. C. A. 1900) 102 Fed.
Rep. 117. See also in re Purvine, (C. C. A. 1899) 96 Fed. Rep. 192; Sinsheimer v. Simonson, (C. C. A. 1901) 107 Fed. Rep. 898; In re Anderson, (1900) 103 Fed. Rep. 854.
The Bankruptcy Act of 1898 confers special power upon the court to control the administration of estates of bankrupts, and to imprison Bankrupts and others for contumacy, If this section can be so construed as to make it applicable to such cases as the one under consideration, and to forbid the imprisonment of bankrupts as a means of compelling the surrender of their estates, then there is a conflict, and the court must give effect to the Bankruptcy Act as the later one. Ripon Knitting Works v. Schreiber, (1900) 101 Fei. Rep. 810. Failure to pay equity decree.
“By the laws of this state [N. Y.] proceedings cannot be had as for a contempt for the nonpayment of money ordered by the court to be paid when the payment can be enforced by executior, and imprisonment for nonpayment of costs is abolished. The power of the courts of this United States to punish for contempt and imprison for nonpayment of money judgments is circumscribed and controlled by the laws of the state; and where an order made in the progress of the cause is of the character in substance of a judgment or decree for the payment of money, it cannot be enforced upon the theory that disobedience is a contempt.' Mallory Mfg. Co. v. Fox, (1884) 20 Fed. Rer. 409. But see Hendryx v. Fitzpatrick, (1884) 19 Fed. Rep. 810.
Where the state law provides that no person shall be arrested or imprisoned on any civil process in any suit or proceeding instituted for the recovery of any money, due upon any judgment or decree founded on any contract, or due upon any contract, express or implied, with certain exceptions, an attachment will not lie, in a proceeding in equity against a liquidating partner for an account for noncompliance with a decree against him for a balance due the plaintiff, where the case did not come within the statutory exceptions. Nelson v. Hill, (1898) 89 Fed. Rep. 477.
Suits in admiralty. – In Hanson v. Fowle, (1871) 1 Sawy. (U. S.) 497, it was held that that portion of the Act of 1867 which adopted the state law concerning the “modifications, conditions, and restrictions upon imprisonment for debt,” did not apply to process in suits in admiralty. See The Carolina, (1876) 14 Fed. Rep. 424; Marshall v. Bazin, (1849) 7 N. Y. Leg. Obs. 342, 16 Fed. Cas. No. 9,125.
In Stone v. Murphy, (1898) 86 Fed. Rep. 158, the court said that under an admiralty rule which provides that, “in all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the state where an arrest is made upon similar or analogous process issuing from the state courts," and where by the law of the state a party arrested in a civil action is entitled to his discharge from the arrest upon giving an undertaking to the effect that he will at all times render himself amenable to the process