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of the court during the pendency of the ac on a capias ad satisfaciendum, Jated 1838, tion, defendants in an action for damages for and issued on a judgment rendered the same personal injuries received on the high seas year. Wilber v. Ingersoll, (1840) 2 McLean cannot be required to add to the conditions (U. S.) 322. of the bond that they will appear and pay Conditions prescribed. — When a discharge the money awarded by the decree that may from imprisonment is sought under the probe rendered.

visions of a state statute, it must be upon the In Louisiana Ins. Co. v. Nickerson, (1874) conditions prescribed, as where the statute 2 Lowell (U. S.) 310, it was held that the provides “That no person shall be released Act of 1867 applied to cases in admiralty from imprisonment under this Act who neg. courts. See The Blanche Page, (1879) 16 lects or refuses to schedule in manner and Blatchf. (U. S.) 1.

form as provided by this Act (concerning inIn the following cases, rules adopted by the solvent debtors).” Stroheim v. Deimel, (C. C. court conforming the practice in suits in A. 1897) 77 Fed. Rep. 802. admiralty, as to the arrest and imprisonment Where a state (Mass.) statute declares that of the defendant, to that of the state, in like imprisonment for debt is abolished, but exor analogous cases, were applied: The Ken pressly allows a creditor to imprison his tucky, (1860) 4 Blatchf. (U. S.) 448; Hodge debtor upon complying with certain conditions 1. Bemis, (1849) 2 Am. L. J. N. S. 337, 12 prescribed by the Act, and this not by way of Fed. Cas. No. 6,557; Gardner v. Isaacson, punishment of the debtor, but as a remedy to (1848) Abb. Adm. 141; Gaines v. Travis, enforce payment of the debt, it does not abol(1849) Abb. Adm. 422; Matter of Freeman, ish imprisonment for debt within the mean(1855) 2 Curt. (U. S.) 491; Atkins v. Fibre ing of the Act of Congress. Matter of FreeDisintegrating Co., (1867) 1 Ben. (U. S.) man, (1855) 2 Curt. (U. S.) 491. See also 118; The Steamboat Delaware, (1846) Olc. Campbell v. Hadley, (1859) i Sprague (U. S.) Adm. 210.

470; Catherwood v. Gapete, (1854) 2 Curt. Penal remedy against debtor. — Where a (U. S.) 94; U. S. v. Walsh, (1867) Deady state law provides fully for the abolition of (U. S.) 281. imprisonment for debt, and the process by “Modification." A state (Mass.) insolvwhich the arrest of a debtor is made has been ent law provides that a debtor who has realso abolished, the consequence is that im ceived his certificate of discharge shall be prisonment for debt in all the cases under forever thereafter discharged and exempt process from the federal court is formally from arrest and imprisonment in any suit or terminated. But a law of the state, very upon any proceeding for, or on account of, highly penal, giving to creditors a remedy as any debt or demand which might have been respects their debtors in certain cases of proved against his estate. Such a law is a fraud, cannot be enforced in the courts of the * modification” of the general law of imUnited States. Curtis v. Feste, (1853) 6 prisonment for debt. “ By this Act, Fed. Cas. No. 3,502.

all modifications upon imprisonment for debt Criminal case. A fine imposed for the are adopted. Is not the express exemption of violation of laws for the punishment of crimes discharged insolvents from imprisonment and misdemeanors is not such a debt as is upon provable debts a modification upon imwithin the scope of provisions of a state con prisonment for debt? I so consider it. It is stitution abolishing imprisonment for debt, certainly a modification of the general law and this section is therefore not applicable of imprisonment for debt, and that is what to a criminal case. In re Sanborn, (1892) the statute means." Low v. Durfee, (1880) 52 Fed. Rep. 583. See also In re Laski, 5 Fed. Rep. 256. (1871) 13 Int. Rev. Rec. 142, 14 Fed. Cas. Obligation not impaired. -- When a remedy No. 8,098; In re Bergen, (1870) 2 Hughes against a debtor is taken away by a law abol(U. S.) 513.

ishing imprisonment for debt, or by a proFor money received in a fiduciary capacity, ceeding under an insolvent law, the contract see McKay v. Garcia, (1873) 6 Ben. (U. S.) is not reached, nor its obligation impaired. 556.

Gray v. Munroe, (1839) 1 McLean (U. S.) Judgment prior to date of Act. - A state 528. See U. S. Bank v. Weisiger, (1829) 2 law of 1838, abolishing imprisonment for debt Pet. (U. S.) 331; Snead v. M'Coull, (1851) except in certain cases, adopted by the Act of 12 How. (U. S.) 407; King v. Riddle, (1812) Congress of 1839, could not have the effect to 7 Cranch (U. S.) 168; Mason V. Haile, release from imprisonment a defendant held (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.]

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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. 513.

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. lait 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 er 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 l'nited States as at the suit of any person, shall be entitled to the same privi leges 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; principals did not lodge in the night-time det of May 19, 1828, ch. 68, 4 Stat. L. 278; within the walls of the jail, but went at large Act of Aug. 1, 1842, ch. 109, 5 Stat. L. 499. both day and night, within the limits of the

The term “ process ” is broad enough to em jail yard. U. S. v. Knight, (1840) 14 Pet. bruce all process upon which a party is im (l'. S.) 301. prisoned, and is applicable to cases where the A writ of habeas corpus is not a proper imprisonment is on execution as well as remedy in a civil cause in which judgment mesne process. U. S. v. Noah, (1825) 1 Paine has been rendered against the petitioner, upon (L'. S.) 368.

which a ca. sa. had issued, by which he was In an action on a bond, which recited that taken and in confinement within the prison if the principals, “ from the time of executing bounds upon a prison bounds bond. Er p. this bond, shall continue true prisoners, in Wilson, (1810) 6 ('ranch (U. S.) 52. the custody of the jailer, within the limits of Refusal by the sheriff to take a bond for the jail yard, until they shall be lawfully dis the privilege of jail liberties would render charged, and shall not depart without the ex him liable to an action for false imprisonterior bounds of said jail yard until lawfully ment. U. S. v. Noah, (1825) 1 Paine (U. discharged from said imprisonment,

S.) 368. then the said obligation to be void,” it was After taking a bond for the jail limits, the held that the parties to the bond are bound for sheriffloses all authority and control over nothing whatsoever, but what is contained in the prisoner, except that if he should discover the condition of the bond, whether it be or be that the bail taken is insufficient he may not conformable with the law. So that where confine the prisoner in jail until good and by the state (Mass.) law, it was an escape for sufficient bail be offered; he is not bound to a debtor, having the liberty of the yard, to be receive the prisoner when offered to be surwithout the walls of the prison in the night rendered. U. S. v. Noah, (1825) 1 Paine (U. time, it was no breach of the bond when the 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 summon 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.

When such appraisers attend they shall be entitled to the like fees as in cases of appraisements under the laws of the State. [R. S.]

Act of March 2, 1793, ch. 22, 1 Stat. L. 335.

Sec. 994. [Death of marshal after levy or after sale.] When a marshal dies, or is removed from office, or the term of his commission expires, after he has taken in execution, under process from a court of the United States, any lands, tenements, or hereditaments, and before sale or other final disposition thereof, the like process shall issue to the succeeding marshal, and the same proceeding shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is removed from office, or the term of his commission expires, after he has sold any lands, tenements, or hereditaments, under process from a court of the United States, and before a deed for the same is executed by him to the purchaser, such court may, on application by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the marshal for the time being to perfect the title and execute a deed to the purchaser, upon his paying the purchase-money and costs remaining unpaid. [R. S.]

Act of May 7, 1800, ch. 45, 2 Stat. L. 61. from office and a successor appointed after

Sale after removal from office. -- Under the the levy and before the sale, was irregular, Act of May 7, 1800 (now this section), and notwithstanding that before the sale he was the Judiciary Act of 1789 (now section 790, not notified of his removal, nor of the apR. S.), it was held that a sale of land by pointment of his successor. “ His functions a marshal, on a venditioni exponas, after he were terminated by the act of removal.” But is removed from office, the sale being returned see Bowerbank v. Morris, (1801) Wall. (C. to the court and confirmed by it, on motion, C.) 119. and a deed ordered to be made to the pur An amendment to the return on the writ chaser at the sale, by the new marshal, is of execution under which a late marshal acted valid. Doolittle v. Bryan, (1852) 14 How. in making a sale of lands may be directed by (U. S.) 563. But see U. S. v. Arkansas State the court to be made by the late marshal, in Bank, (1846) Hempst. (U. S.) 460; Stewart order to furnish information to his successor v. Hamilton, (1849) 4 McLean (U. S.) 534. by which he may finish the execution of a

But in Overton v. Gorham, (1841) 2 Mc power and perfect title by making a proper Lean (U. S.) 509, it was held that a sale of deed. Ex p. Worley, (1884) 19 Fed. Rep. 586. land, made by a marshal who was removed

Sec. 3470. [Purchase on execution.] At every sale, on execution, at the suit of the United States, of lands or tenements of a debtor, the United States may, by such agent as the Solicitor of the Treasury shall appoint, become the purchaser thereof; but in no case shall the agent bid in behalf of the United States a greater amount than that of the judgment for which such estate may be exposed to sale, and the costs. Whenever such purchase is made, the marshal of the district in which the sale is held shall make all needful conveyances, assignments, or transfers to the United States. [R. S.]

Act of May 26, 1824, ch. 172, 4 Stat. L. 51.

Sec. 3471. [Discharge of poor debtor by Secretary of the Treasury.] Any person imprisoned upon execution issuing from any court of the United States, for a debt due to the United States, which he is unable to pay, may, at any time after commitment, make application, in writing, to the Secretary of the Treasury, stating the circumstances of his case, and his inability to discharge the debt; and thereupon the Secretary may make, or require to be made, an examination and inquiry into the circumstances of the debtor, by the oath of the debtor, which the Secretary, or any other person by him specially appointed, is authorized to administer, or otherwise, as the Secretary shall deem necessary and expedient, to ascertain the truth; and upon proof made to his satisfaction, that the debtor

is unable to pay the debt for which he is imprisoned, and that he has not concealed or made any conveyance of his estate, in trust, for himself, or with an intent to defraud the United States, or to deprive them of their legal priority, the Secretary is authorized to receive from such debtor any deed, assignment, or conveyance of his real or personal estate, or any collateral security, to the use of the L'nited States. Upon a compliance by the debtor with such terms and conditions as the Secretary may judge reasonable and proper, the Secretary must issue his order, under his hand, to the keeper of the prison, directing him to discharge the debtor from his imprisonment under such execution. The debtor shall not be liable to be imprisoned again for the debt; but the judgment shall remain in force, and may be satisfied out of any estate which may tben, or at any time afterward, belong to the debtor. The benefit of this section shall not be extended to any person imprisoned for any fine, forfeiture, or penalty, incurred by a breach of any law of the United States, or for moneys had and received by any officer, agent, or other person, for their use; nor shall its provisions extend to any claim arising under the postal laws. [R. S.]

Act of June 6, 1798, ch. 49, 1 Stat. L. 561, imprisonment. The statutory provision that 562.

the judgment shall remain good and sufficient Statute is not exclusive. — The provisions in law does not change the common-law rule of this statute, investing the secretary of the that the release of a debtor, whose person is in treasury with power to discharge poor im execution, is a release of the judgment itself. prisoned debtors of the United States, are not The release of the principal on condition that exclusive of any other rights or remedies they he should pay the costs, and assign and conmay have under any other statute, as under vey to the use of the United States all his section 990, R. S.; such statutes are cumula property, is not such a compromise as will tive. U. S. v. Tetlow, (1872) 2 Lowell (U. exonerate the sureties. U. S. v. Stansbury, S.) 159.

(1828) 1 Pet. (U. S.) 573. See also Hunter “Discharged on payment of costs" can only v. U. S., (1831) 5 Pet. (U. S.) 172; Hunt v. be regarded as applying to the costs of suit U. S., (1812) 1 Gall. (U. S.) 32; U. S. v. accruing in the case or cases in which the Sturges, (1826) 1 Paine (U. S.) 525; (1820) debtor was imprisoned; the expenses of the 1 Op. Atty.-Gen. 367. examination come within the terms of the ap An assignment of the debtor's real and perpropriation “for defraying the expenses of sonal estate is a necessary preliminary to his suits in which the United States are

discharge under the Act of 1798 (now this cerned." (1841) 3 Op. Atty.-Gen. 614.

section), and the secretary of the treasury Sureties on a bond for the payment of has no discretion to make an exception as to duties are not discharged from liability by the debtor's bedding, etc. (1820) 5 Op. Atty.reason of the discharge of the principal from Gen. 727.


Sec. 3472. [Discharge by the President. ] Whenever any person is imprisoned upon execution for a debt due to the United States, which he is unable to pay, and his case is such as does not authorize his discharge by the Secretary of the Treasury, under the preceding section, he may make application to the President, who, upon proof made to his satisfaction that the debtor is unable to pay the debt, and upon a compliance by the debtor with such terms and conditions as the President shall deem proper, may order the discharge of such debtor from his imprisonment. The debtor shall not be liable to be imprisoned again for the same debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor. [R. S.]

Act of March 3, 1817, ch. 114, 3 Stat. L. Op. Atty.-Gen. 285; (1818) 1 Op. Atty.-Gen. 399.

231. Confinement under special process. — The The discharge of a principal debtor by the Act clearly relates to persons confined under President, under the provisions of this statthe ordinary legal process, that is to say, of ute, does not discharge the sureties of such execution founded on judgment. It does not debtor, nor furnish them with any defense contemplate cases of confinement under any against the judgment in force against them. special process, such as under a warrant of (1822) 5 Op. Atty.-Gen. 746. distress. If the defendant confess judgment, The discharge of one surety by order of and a capias issue, the President will be at the President does not operate as an exoner

(1829) 2

ation of a co liberty to interpose his authority. (

“The Act of Congress,

co-surety. 53

Volume III.

by virtue of which the discharge was made, is a mere release of the person, but does not affect the lebt." U. S. v. Beattie, (1829) Gilp. (U. S.) 92. See (1820) 1 Op. Atty.Gen. 367.

Marshal's fees not paid. - Where the President ordered an absolute and unconditional discharge of an imprisoned deb.or without any arrangement as to the payment of fees due to the marshal from the debtor, the marshal's power or right to compel payment from him was taken away by authority of the United States, and the right of the marshal to claim his poundage fees from the government is clearly established. U. S. v. Ringgold, (1834) 8 Pet. (U. S.) 150.

The defendant, upon being ordered by the

President to be discharged, and being held in custody by the marshal for fees, agreed with the marshal to pay those fees by instalments, and that if he should make default, the marshal should obtain a new ca. sa. and arrest him. He made default and the marshal took out a new ca. sa, in the name of the United States for his fees. Upon this new ca. sa. he was arrested, but the court refused to order the defendant to be committed. U. S. v. Smith, (1826) 3 Cranch (C. C.) 66.

Refund money. - The President has not power under this statute to order money paid into the treasury by judgment and execution, upon the penalty of a bond, to be refunded several years after the payment was made. (1829) 2 Op. Atty.-Gen. 189.

An act to regulate the manner in which property shall be sold under orders and decrees of any

United States courts.

[Act of March 3, 1893, ch. 225, 27 Stat. L. 751.]

[SEC. 1.] [Real estate, how sold under order or decree of court.] That all real estate or any interest in land sold under any order or decree of any United States Court shall be sold at public sale at the Court-house of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct. [27 Stat. L. 751.]

Act not retroactive but prospective. “ The the execution of a writ of fieri facias, or other Act of Congress, having been passed after the similar process. The decree is valid until redecree in question was rendered, must be given versed for error, whereas the error of a merely a retroactive or retrospective application, if ministerial officer renders his act void ab it applies in this case. The Act not only con initio.Godchaux v. Morris, (C. C. A. 1903) tains no expression of an intention that it 121 Fed. Rep. 482. shall be retrospective, but, on the contrary,

See also National Nickel Co. v. Nevada seems to show on its face that it was expected Nickel Syndicate, (C. C. A. 1901) 112 Fed. to operate only prospectively. In each sec Rep. 44, in which case the special master cartion of the Act the expression occurs, in re ried out the directions of the decree of foregard to details of either the sale or advertise closure and order of sale, including the diment, 'as the court rendering said order or rection as to the publication of the notice. decree of sale may direct.' It is a general “ It is conceded by the court below, and canrule that statutes are not given a retroactive not be denied, that, had the plaintiff in error effect unless the contrary intention is clearly made objection to the order of sale at the expressed.” Central Trust Co. v. Sheffield, proper time, the court would have been etc., Coal, etc., Co., (1894) 60 Fed. Rep. 16. obliged to modify the decree, and order the

Statute directory. - When sale was not sale of the property upon notice published made at the court-house as directed by the and posted as required by the Act of Congress. statute, but was made in compliance with the

The law does not permit a party to requirements of the decree, entered by consent stand by in silence while judicial proceedings of the defendant, the sale is not void. The are in progress affecting his rights, and witherror in the decree could only be corrected hold objections to erroneous procedure until by an appellate court.: “A clear distinction other rights have intervened, and then chalmust be drawn between an error made by a lenge their validity on account of such erronecourt having jurisdiction of the cause of ac ous procedure." See Nevada Nickel Syndicate tion in which the decree is entered, and the v. National Nickel Co., (1900) 103 Fed. Rep. error of a ministerial officer, whose duties 391. See also Black v. Black, (1896) 77 Fed. were prescribed by law, such as a sheriff, in Rep. 785.

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SEC. 2. [Personal property.] That all personal property sold under any order or decree of any Court of the United States shall be sold as provided in the first section of this act, unless in the opinion of the court rendering such order or decree, it would be best to sell it in some other manner. [27 Stat. L. 751.]

SEC. 3. [Publication.] That hereafter no sale of real estate under any order, judgment, or decree of any United States Court shall be had without previous

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