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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. (U. 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 v. Arthur, (1882) 10 Fed. Rep. 80, 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 v. Maxwell, (1867) 6 Fed. Cas. No. 3,413, (1869) 6 Blatchf. (U. S.) 468.

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

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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.

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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.

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. 321; Act of Jan. 14, 1841, ch. 2, 5 Stat. L. 410; Act of March 2, 1867, ch. 180, 14 Stat. L. 543.

Debtors of the United States. The United States, as plaintiffs in an action for debt, are within the operation of insolvent debtor laws. And this is so notwithstanding Congress has given to the President and the secretary of the treasury power to discharge from prison poor debtors of the United States (see sections 3471 and 3472, R. S.). Such acts are cumulative. U. S. v. Tetlow, (1872) 2 Lowell (U. S.) 159. See also U. S. v. Walsh, (1867) Deady (U. S.) 281; Moan v. Wilmarth, (1847) 3 Woodb. & M. (U. S.) 399; U. S. v. Knight, (1840) 14 Pet. (U. S.) 301.

But in U. S. v. Hewes, (1839) Crabbe (U. S.) 307, it was held that the United States and their rights and remedies against their debtors were not affected by, and included in, the provisions of the Act of Congress of Feb. 28, 1839. See U. S. v. Wilson, (1823) 8 Wheat. (U. S.) 253.

"The intent of R. S. secs. 990, 991, is that in civil actions for debt the defendant shall be subject to imprisonment, and be released therefrom, precisely as he would be under the law of the state." Low v. Durfee, (1880) 5 Fed. Rep. 256. See Mewster v. Spalding, (1853) 6 McLean (U. S.) 24.

A state court has no authority, under a state insolvent law, to release from jail one held on bail under a judgment rendered in an action at law by a federal court. "Under this Act [of 1839], whatever was to be done to assimilate the effect of process out of the courts of the United States, to the effect of process out of the state courts, was to be done in and by the courts of the United States, acting on their own process, by changing its requirements, or controlling its effects upon motion, and not by orders or decrees of state courts operating thereon." Sadlier v. Fallen, (1854) 2 Curt. (U. S.) 190. See Duncan v. Darst, (1843) 1 How. (U. S.) 301; U. S. Bank v. Tyler, (1830) 4 Pet. (U. S.) 366; McNutt v. Bland, (1844) 2 How. (U. S.) 9; Matter of Farrand, (1867) 1 Abb. (U. S.) 140.

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A judgment for tort in a federal court is not a debt" within the meaning of the provisions of this section. Stroheim v. Deimel, (C. C. A. 1897) 77 Fed. Rep. 802. See also U. S. v. Walsh, (1867) Deady (U. S.) 281.

An action for damages for personal injuries, when it ripens into a decree for a sum of money, becomes a debt against the defendant in the decree. "Such a claim is not a debt; it is less than a debt; and it cannot be said that the reason for abolishing imprisonment for debt does not apply in a case like

this. If a defendant is not liable to imprisonment for a debt, he should not, for the stronger reason, be liable to imprisonment in an action where the result can only be a judgment for money." Stone v. Murphy, (1898) 86 Fed. Rep. 158.

An action for damages for personal injuries was held in Hanson v. Fowle, (1871) 1 Sawy. (U. S.) 497, not to be governed by the provisions of this section. While a person who wilfully injures another is liable in damages, and may, therefore, in a sense, be called the "debtor of the party injured, and the sum due for the injury "debt," he is in fact a wrongdoer, a trespasser, and does not come within the reason of the rule which exempts an honest man from imprisonment because he is pecuniarily unable to pay what he has promised.

"The word 'debt' is of very general use, and has many shades of meaning. Looking to the origin and progress of the change in public opinion, which finally led to the abolition of imprisonment for debt, it is reasonable to presume that this provision in the state constitution was intended to prevent the useless and often cruel imprisonment of persons, who, having honestly become indebted to another, are unable to pay as they undertook and promised. In this view of the matter the clause in question should be construed as if it read: There shall be no imprisonment for debt arising upon contract express or implied, except,' etc. Such is substantially the language employed in the legislative acts of most of the states, abolishing imprisonment for debt; and there can be but little doubt that this was the end which the framers of the constitution had in view, as well as the popular understanding of the clause, when the instrument was adopted at the polls. General or abstract declarations in bills of rights are necessarily brief and comprehensive in their terms. When applied to the details of the varied affairs of life, they must be construed with reference to the causes which produced them and the end sought to be obtained. A person who wilfully injures another in person, property, or character, is liable therefor in damages. In some sense he may be called the debtor of the party injured, and the sum due for the injury a debt. he is in fact a wrongdoer, a trespasser, and does not come within the reason of the rule which exempts an honest man from imprisonment because he is pecuniarily unable to pay what he promised to." U. S. v. Walsh, (1867) Deady (U. S.) 281.

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Unliquidated damages or contingent debt. The statute and the [admiralty] rule 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 claim 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 Fed. 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 execution, and imprisonment for nonpayment of costs is abolished. The power of the courts of the 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. Rep. 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.

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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

of the court during the pendency of the action, defendants in an action for damages for personal injuries received on the high seas cannot be required to add to the conditions of the bond that they will appear and pay the money awarded by the decree that may be rendered.

In Louisiana Ins. Co. v. Nickerson, (1874) 2 Lowell (U. S.) 310, it was held that the Act of 1867 applied to cases in admiralty courts. See The Blanche Page, (1879) 16 Blatchf. (U. S.) 1.

In the following cases, rules adopted by the court conforming the practice in suits in admiralty, as to the arrest and imprisonment of the defendant, to that of the state, in like or analogous cases, were applied: The Kentucky, (1860) 4 Blatchf. (U. S.) 448; Hodge v. Bemis, (1849) 2 Am. L. J. N. S. 337, 12 Fed. Cas. No. 6,557; Gardner v. Isaacson, (1848) Abb. Adm. 141; Gaines v. Travis, (1849) Abb. Adm. 422; Matter of Freeman, (1855) 2 Curt. (U. S.) 491; Atkins v. Fibre Disintegrating Co., (1867) 1 Ben. (U. S.) 118; The Steamboat Delaware, (1846) Olc. Adm. 240.

Penal remedy against debtor. Where a state law provides fully for the abolition of imprisonment for debt, and the process by which the arrest of a debtor is made has been also abolished, the consequence is that imprisonment for debt in all the cases under process from the federal court is formally terminated. But a law of the state, very highly penal, giving to creditors a remedy as respects their debtors in certain cases of fraud, cannot be enforced in the courts of the United States. Curtis v. Feste, (1853) 6 Fed. Cas. No. 3,502.

Criminal case. A fine imposed for the violation of laws for the punishment of crimes and misdemeanors is not such a debt as is within the scope of provisions of a state constitution abolishing imprisonment for debt, and this section is therefore not applicable to a criminal case. In re Sanborn, (1892) 52 Fed. Rep. 583. See also In re Laski, (1871) 13 Int. Rev. Rec. 142, 14 Fed. Cas. No. 8,098; In re Bergen, (1870) 2 Hughes (U. S.) 513.

For money received in a fiduciary capacity, see McKay v. Garcia, (1873) 6 Ben. (U. S.) 556.

Judgment prior to date of Act. A state law of 1838, abolishing imprisonment for debt except in certain cases, adopted by the Act of Congress of 1839, could not have the effect to release from imprisonment a defendant held

on a capias ad satisfaciendum, dated 1838, and issued on a judgment rendered the same year. Wilber v. Ingersoll, (1840) 2 McLean (U. S.) 322.

Conditions prescribed. When a discharge from imprisonment is sought under the provisions of a state statute, it must be upon the conditions prescribed, as where the statute provides "that no person shall be released from imprisonment under this Act who neglects or refuses to schedule in manner and form as provided by this Act [concerning insolvent debtors]." Stroheim v. Deimel, (C. C. A. 1897) 77 Fed. Rep. 802.

Where a state (Mass.) statute declares that imprisonment for debt is abolished, but expressly allows a creditor to imprison his debtor upon complying with certain conditions prescribed by the Act, and this not by way of punishment of the debtor, but as a remedy to enforce payment of the debt, it does not abolish imprisonment for debt within the meaning of the Act of Congress. Matter of Freeman, (1855) 2 Curt. (U. S.) 491. See also Campbell v. Hadley, (1859) 1 Sprague (U. S.) 470; Catherwood v. Gapete, (1854) 2 Curt. (U. S.) 94; U. S. v. Walsh, (1867) Deady (U. S.) 281.

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"Modification.". A state (Mass.) insolvent law provides that a debtor who has received his certificate of discharge shall be forever thereafter discharged and exempt from arrest and imprisonment in any suit or upon any proceeding for, or on account of, any debt or demand which might have been proved against his estate. Such a law is a modification" of the general law of imprisonment for debt. By this Act, all modifications upon imprisonment for debt are adopted. Is not the express exemption of discharged insolvents from imprisonment upon provable debts a modification upon imprisonment for debt? I so consider it. It is certainly a modification of the general law of imprisonment for debt, and that is what the statute means." Low v. Durfee, (1880) 5 Fed. Rep. 256.

Obligation not impaired. When a remedy against a debtor is taken away by a law abolishing imprisonment for debt, or by a proceeding under an insolvent law, the contract is not reached, nor its obligation impaired. Gray v. Munroe, (1839) 1 McLean (U. S.) 528. See U. S. Bank v. Weisiger, (1829) 2 Pet. (U. S.) 331; Snead v. M'Coull, (1851) 12 How. (U. S.) 407; King v. Riddle, (1812) 7 Cranch (U. S.) 168; Mason v. Haile, (1827) 12 Wheat. (U. S.) 370.

Sec. 991. [Discharge from arrest or imprisonment on mesne or final process.] When any person is arrested or imprisoned in any State, on mesne process or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprisonment in the same manner as if he were so arrested and imprisoned on like process from the courts of such State. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such State, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before one of the commissioners of the circuit court for the district where the defendant is so held. [R. S.]

Act of Jan. 6, 1800, ch. 4, 2 Stat. L. 5; Act of Jan. 7, 1824, ch. 3, 4 Stat. L. 1; Act of April 22, 1824, ch. 39, 4 Stat. L. 19, 20; Act of March 2, 1867, ch. 180, 14 Stat. L. 543. See notes under section 990, supra.

Unless the state statute is strictly followed, on a petition for the discharge of an imprisoned debtor, the court does not acquire jurisdiction, and a discharge then granted would render the marshal liable in an action for an escape. Moran v. Secord, (1883) 15 Fed. Rep. 509. See also Slacum v. Simms, (1809) 5 Cranch (U. S.) 363; Low v. Durfee, (1880) 5 Fed. Rep. 256.

The provision that "all such proceedings shall be had before one of the commissioners of the Circuit Court for the district where the defendant is so held" is not open to the objection that Congress cannot constitutionally make such a function exercisable by any officer who is not appointed by the President

with the advice and consent of the Senate. The function in question is not an independent one beyond the pale of an inferior officer's authority, but is merely incidental to the execution of final judicial process. Russell v. Thomas, (1874) 10 Phila. (Pa.) 239, 31 Leg. Int. (Pa.) 189, 21 Fed. Cas. No. 12,162.

Arrest matter of judicial discretion. Where the state (N. C.) law provides for the arrest of a defendant in an action for the recovery of damages on a cause of action not arising out of a contract, when the action is for an injury to person or character, such an arrest cannot be made except upon proceedings calling for the exercise of judicial discretion. What amount of security the plaintiff shall give, and the amount and character of bail of defendant, are matters for the exercise of this discretion." In re Bergen, (1870) 2 Hughes (U. S.) 513.

Sec. 992. [Privileges of jail limits.] Persons imprisoned on process issuing from any court of the United States in civil actions, as well at the suit of the United States as at the suit of any person, shall be entitled to the same privileges of the yards of the respective jails as persons confined in like cases on process from the courts of the respective States are entitled to, and under the like regulations and restrictions. [R. S.]

Act of Jan. 6, 1800, ch. 4, 2 Stat. L. 4; Act of May 19, 1828, ch. 68, 4 Stat. L. 278; Act of Aug. 1, 1842, ch. 109, 5 Stat. L. 499.

The term "process" is broad enough to embrace all process upon which a party is imprisoned, and is applicable to cases where the imprisonment is on execution as well as mesne process. U. S. v. Noah, (1825) 1 Paine (U. S.) 368.

In an action on a bond, which recited that if the principals, "from the time of executing this bond, shall continue true prisoners, in the custody of the jailer, within the limits of the jail yard, until they shall be lawfully discharged, and shall not depart without the exterior bounds of said jail yard until lawfully discharged from said imprisonment,

then the said obligation to be void," it was held that the parties to the bond are bound for nothing whatsoever, but what is contained in the condition of the bond, whether it be or be not conformable with the law. So that where by the state (Mass.) law, it was an escape for a debtor, having the liberty of the yard, to be without the walls of the prison in the nighttime, it was no breach of the bond when the

principals did not lodge in the night-time within the walls of the jail, but went at large both day and night, within the limits of the jail yard. U. S. v. Knight, (1840) 14 Pet. (U. S.) 301.

A writ of habeas corpus is not a proper remedy in a civil cause in which judgment has been rendered against the petitioner, upon which a ca. sa. had issued, by which he was taken and in confinement within the prison bounds upon a prison bounds bond. Ex p. Wilson, (1810) 6 Cranch (U. S.) 52.

Refusal by the sheriff to take a bond for the privilege of jail liberties would render him liable to an action for false imprisonment. U. S. v. Noah, (1825) 1 Paine (U. S.) 368.

After taking a bond for the jail limits, the sheriff loses all authority and control over the prisoner, except that if he should discover that the bail taken is insufficient he may confine the prisoner in jail until good and sufficient bail be offered; he is not bound to receive the prisoner when offered to be surrendered. Ú. S. v. Noah, (1825) 1 Paine (U.

S.) 368.

Sec. 993. [Goods taken on a fieri facias, how appraised.] When it is required by the laws of any State that goods taken in execution on a writ of fieri facias shall be appraised, before the sale thereof, the appraisers appointed under the authority of the State may appraise goods taken in execution on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court of such State. And the marshal, in whose custody such goods may be, shall summon the appraisers, in the same manner as the sheriff is, by the laws of such State, required to summen them; and if the appraisers, being duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement.

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