or more, defendants in actions in the courts of the United States, held herein, shall be entitled to a stay of execution for one term. R. S. § 988, U. S. Comp. Stat. 1901, p. 708. The section was enacted in 1828.10 § 1868. Execution against revenue officers when withheld. 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. § 989, U. S. Comp. Stat. 1901, p. 708. The above section was originally enacted in 1863.14 Its provisions relating to the withholding of executions and payment of judgments against revenue officers, are made applicable to actions against officers of either House of Congress by act of 1875.15 The effect of the provision, where a certificate is given, is practically to convert the suit against the officer into a claim against the United States.16 The certificate of probable cause may be granted by another judge than the one before whom the judg. ment was rendered.17 and after an execution has issued as well as before.18 The certificate must be granted before the liability of the government begins.19 Where the court grants a certificate of probable cause as provided in this section, and the judgment is rendered against the officer, the amount payable out of the treasury does not include interest accrued before judgment.1 And it has been held that the amount payable should not include interest at all.2 10 Act May 19, 1828, c. 68, § 2, 4 Stat. 281. 14 Act March 3, 1863, c. 76, § 12, 12 Stat. 741. Fed. Cas. No. 3,300. 18 Cox v. Blarney, 14 Blatchf. 289, Fed. Cas. No. 3,300. 19 White v. Arthur, 10 Fed. 83, 20 15 See act March 3, 1875, c. 130, § Blatchf. 237; see also United States 8; ante, § 525. v. Sherman, 98 U. S. 565, 25 L. ed. 235. 16 United States v. Sherman, 98 U. S. 565, 25 L. ed. 235; Hedden v. Iselin, 31 Fed. 269, 24 Blatchf. 455. 17 Cox v. Blarney, 14 Blatchf. 289, 1490 1United States v. Sherman, 98 U. S. 565, 25 L. ed. 235. 2 White v. Arthur, 10 Fed. 81. § 1869. Sale or real property under order or decree. 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 courthouse 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. § 1 of act Mar. 3, 1893, c. 225, 27 Stat. 751, U. S. Comp. Stat. 1901, p. 710. § 1870.sale of personal property. 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. § 2 of act Mar. 3, 1893, c. 225, 27 Stat. 751, U. S. Comp. Stat. 1901, p. 710. 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. § 3 of act Mar. 3, 1893, c. 225, 27 Stat. 751, U. S. Comp. Stat. 1901, p. 710. The act is prospective and not retrospective. Its provisions should be complied with strictly. Thus the provision that publication should be made for at least four weeks is not complied with by a publication for twenty-seven days.8 But the provision as to publication being for the protection of the judgment defendant may be waived by him.9 And in 7Central Trust Co. v. Sheffield, etc. Co. 60 Fed. 16. 8 Wilson v. Northwestern, etc. Ins. Co. 65 Fed. 38, 12 C. C. A. 505 9Nevada, etc. Syndicate v. National Nickel Co. 103 Fed. 391. general, mere errors in a decree in directing the manner of the sale of property do not make the decree void but voidable only,10 and such errors or irregularities in such sale afford no ground for setting aside the decree after confirmation had upon due notice to the defendant and without objection.11 § 1872. effect of marshal's death after levy or 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. § 994, U. S. Comp. Stat. 1901, p. 711. The above section was originally enacted in 1800.13 The judiciary act of 1789 provides that marshals, when removed or when their office expires may execute any process in their hands, 14 and it is held that the above section does not repeal that provision but merely confers on the new marshal the power to do the same acts. Hence a sale by a marshal after he is removed from office is not void, but if confirmed by the court and a deed ordered, is valid.15 The court has power to order a marshal, whose time has expired, to amend his return upon an execution so as to furnish his successor with a description of the land levied upon so that the latter may execute a valid deed to the purchaser.16 10 Godcheaux v. Morris, 121 Fed. 482, 57 C. C. A. 434. 11 Nevada, etc. Syndicate v. Na tional Nickel Co. 103 Fed. 391. 13 Act May 7, 1800, c. 45, 2 Stat. 61. 14R. S. § 790; see ante, § 642. 1492 15 Doolittle v. Bryan, 14 How. 566, 14 L. ed. 544. But see United States v. Arkansas, etc. Bank, Hempst. 460; Overton v. Gorham, 2 McLean, 509, Fed. Cas. No. 10,626. 16 Ex parte Worley, 19 Fed. 586. § 1873. State laws as to appraisal before sale apply to Federal courts-procedure. 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 appraisement under the laws of the State. R. S. § 993, U. S. Comp. Stat. 1901, p. 709. The section was carried into the Revised Statutes from an act of 1793.19 § 1874. Execution from State courts against national banks restricted. No execution shall be issued against such association [a national bank] or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court. Part of R. S. § 5242, U. S. Comp. Stat. 1901, p. 3517. 19 Act March 2, 1793, c. 22, § 8, 1 Stat. 335. § 1885. § 1886. § 1887. § 1888. § 1889. § 1890. § 1891. § 1892. § 1893. § 1894. CHAPTER 57. APPEAL AND ERROR IN GENERAL-TIME OF TAKING. Distinction between modes of reviewing law and equity cases. Procedure on appeal from United States court in China. Mode of appeal from district courts acting as circuit courts. Procedure on appeal and error from Alaska District court. Whether review from Territorial courts by writ of error or appeal-procedure. § 1895. Death of party after final judgment below-appeal by representative. § 1896. Death pending appeal to Supreme court and procedure. § 1897. -case to abate when. § 1898. § 1899. § 1900. § 1901. § 1902. § 1903. § 1904. § 1905. § 1906. procedure where representative resides outside jurisdiction of trial court. Death pending appeal to circuit court of appeals and procedure. -case to abate when. -procedure where representative resides outside jurisdiction of Time for taking appeal or writ of error to Supreme Court. Time for appeal from circuit court of appeals to Supreme Court. § 1907. Time and manner of appeal from Court of Claims. § 1908. when limitation of time ceases to run. § 1909. -time for appeal under act of 1887. § 1910. § 1911. Anti-trust cases must be appealed within sixty days. § 1912. § 1913. § 1814. Time for direct appeals to Supreme Court from Indian Territory. § 1915. for appeal on injunction in Commerce Commission cases. § 1916. Parties on appeal where judgment or decree is joint. |