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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. Sale after removal from office. Under the Act of May 7, 1800 (now this section), and the Judiciary Act of 1789 (now section 790, R. S.), it was held that a sale of land by a marshal, on a venditioni exponas, after he is removed from office, the sale being returned to the court and confirmed by it, on motion, and a deed ordered to be made to the purchaser at the sale, by the new marshal, is valid. Doolittle v. Bryan, (1852) 14 How. (U. S.) 563. But see U. S. v. Arkansas State Bank, (1846) Hempst. (U. S.) 460; Stewart v. Hamilton, (1849) 4 McLean (U. S.) 534.

But in Overton v. Gorham, (1841) 2 McLean (U. S.) 509, it was held that a sale of land, made by a marshal who was removed

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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 United 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 then, 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, 562.

Statute is not exclusive. The provisions of this statute, investing the secretary of the treasury with power to discharge poor imprisoned debtors of the United States, are not exclusive of any other rights or remedies they may have under any other statute, as under section 990, R. S.; such statutes are cumulative. U. S. v. Tetlow, (1872) 2 Lowell (U. S.) 159.

"Discharged on payment of costs" can only be regarded as applying to the costs of suit accruing in the case or cases in which the debtor was imprisoned; the expenses of the examination come within the terms of the appropriation "for defraying the expenses of suits in which the United States are concerned." (1841) 3 Op. Atty.-Gen. 614.

Sureties on a bond for the payment of duties are not discharged from liability by reason of the discharge of the principal from

imprisonment. The statutory provision that the judgment shall remain good and sufficient in law does not change the common-law rule that the release of a debtor, whose person is in execution, is a release of the judgment itself. The release of the principal on condition that he should pay the costs, and assign and convey to the use of the United States all his property, is not such a compromise as will exonerate the sureties. U. S. v. Stansbury, (1828) 1 Pet. (U. S.) 573. See also Hunter v. U. S., (1831) 5 Pet. (U. S.) 172; Hunt v. U. S., (1812) 1 Gall. (U. S.) 32; U. S. v. Sturges, (1826) 1 Paine (U. S.) 525; (1820) 1 Op. Atty. Gen. 367.

An assignment of the debtor's real and personal estate is a necessary preliminary to his discharge under the Act of 1798 (now this section), and the secretary of the treasury has no discretion to make an exception as to the debtor's bedding, etc. (1820) 5 Op. Atty.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. Š.]

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by virtue of which the discharge was made, is a mere release of the person, but does not affect the debt." 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. Stat. L. 751.]

Act not retroactive but prospective. — " The Act of Congress, having been passed after the decree in question was rendered, must be given a retroactive or retrospective application, if it applies in this case. The Act not only contains no expression of an intention that it shall be retrospective, but, on the contrary, seems to show on its face that it was expected to operate only prospectively. In each section of the Act the expression occurs, in regard to details of either the sale or advertisement, as the court rendering said order or decree of sale may direct.' It is a general rule that statutes are not given a retroactive effect unless the contrary intention is clearly expressed." Central Trust Co. v. Sheffield, etc., Coal, etc., Co., (1894) 60 Fed. Rep. 16.

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Statute directory. When sale was not made at the court-house as directed by the statute, but was made in compliance with the requirements of the decree, entered by consent of the defendant, the sale is not void. The error in the decree could only be corrected by an appellate court. "A clear distinction must be drawn between an error made by a court having jurisdiction of the cause of action in which the decree is entered, and the error of a ministerial officer, whose duties were prescribed by law, such as a sheriff, in

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the execution of a writ of fieri facias, or other similar process. The decree is valid until reversed for error, whereas the error of a merely ministerial officer renders his act void ab initio." Godchaux v. Morris, (C. C. A. 1903) 121 Fed. Rep. 482.

See also National Nickel Co. v. Nevada Nickel Syndicate, (C. C. A. 1901) 112 Fed. Rep. 44, in which case the special master carried out the directions of the decree of foreclosure and order of sale, including the direction as to the publication of the notice. "It is conceded by the court below, and cannot be denied, that, had the plaintiff in error made objection to the order of sale at the proper time, the court would have been obliged to modify the decree, and order the sale of the property upon notice published and posted as required by the Act of Congress. The law does not permit a party to stand by in silence while judicial proceedings are in progress affecting his rights, and withhold objections to erroneous procedure until other rights have intervened, and then challenge their validity on account of such erroneous procedure." See Nevada Nickel Syndicate v. National Nickel Co., (1900) 103 Fed. Rep. 391. See also Black v. Black, (1896) 77 Fed. 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. L. 751.]

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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

publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and State where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated, as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of the notice of sale herein. provided for to be made in such other papers as may seem proper. L. 751.]

"For at least four weeks" means four weeks of seven days each, and a "publication of a notice of sale once a week for only twenty-seven days before the day of sale is not a previous publication' of such a notice ' once a week for at least four weeks prior to such sale' as required by" this statute, and by the decree of the court. Wilson v. Northwestern Mut. L. Ins. Co., (C. C. A. 1894) 65 Fed. Rep. 38.

Debtor may waive statutory requirements. -"The provision of the statute of the United States requiring that in all cases four weeks' notice should be given of the time of sale was intended for the benefit and protection of the judgment debtor, and created a privilege and right which the judgment debtor

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in any case may insist upon or waive." Nevada Nickel Syndicate v. National Nickel Co., (1900) 103 Fed. Rep. 399.

Provisions of state statute. Where there was a newspaper printed in the county in which the property was situated, and the notice was published in that newspaper, in compliance with the provisions of the state statute and this section, it is sufficient though the notice of the sale of the property was not posted on the door of the court-house and in five other public places, as directed by the state statute in the case of execution sales of property situated in the counties in which no newspaper is printed. Elgutter v. Northwestern Mut. L. Ins. Co., (Č. C. A. 1898) 86 Fed. Rep. 500.

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EXECUTIVE DEPARTMENTS.

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