his predecessor were still in office.15 In such a case, when the former marshal has sold the real estate but executed no deed, the 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 the former marshal, order his successor to perfect the title, and execute and deliver a deed to the purchaser upon payment of the balance due.16 The marshal of the district of the United States has substantially the same powers and duties as a sheriff in one of the counties within such district." In the district of Florida, real property must be sold at the door of the court-house in the county where the land is situated.18

The act of March 3, 1893, provides "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 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.

"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.

"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 such 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

15 U. S. R. S., § 994; Doolittle v. 135 U. S. 1; s. C., 39 Fed. R. 833. See Bryan, 14 How. 563. supra, § 340.

15 U. S. R. S., § 994; Byers v. Fowler, 12 Ark. 218.

17 U. S. R. S., § 787; In re Neagle,

18 Bornemann v. Norris, 47 Fed. R. 438.

of the notice of sale herein provided for to be made in such other papers as may seem proper." 19

The Revised Statutes provide that "all writs of execution upon judgments or decrees obtained in a Circuit or District Court, in any State which is divided into two or more districts, may issue and be executed in any part of such State, but shall be issued from and made returnable to the court wherein the judgment was obtained." 20 It has been held that in such a case the judgment operates as a lien upon real property in the other districts of the same State without the filing of a certified copy there," and that the marshals of the other districts may execute a writ directed to the marshal of the district where the judgment was obtained. Where there is no lien on personal property by reason of a judgment, and executions under judgments in the courts of which they are respective officers are issued to both the marshal and the sheriff, the officer who first makes a levy is entitled to the possession of the property.23

24

Under the Revised Statutes, "interest is allowed on all judg ments in civil causes recovered in a Circuit or District Court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the State in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such State." The interest is calculated from the date of the judg ment, at such rate as is allowed by law on judgments "recovered in the courts of such State." 25 This statute does not apply to judgments against the United States. This statute does not apply to decrees in equity, nor to judgments or decrees of the Supreme Court of the United States." When a judgment against a municipal corporation was revived against its successor by scire facias, the order awarded execution for interest as well as principal.28 The Revised Statutes further provide that "when a Circuit Court enters judgment in a civil action, either

19 27 St. at L. 751. See supra, SS 316,

340.

20 U. S. R. S., § 985.

21 Prevost v. Gorrell, 5 W. N. C. 151. 22 Prevost v. Gorrell, 5 W. N. C. 151, 152..

26

24 U. S. R. S., § 966.

25 Ibid.

26 U. S. v. Sherman, 98 U. S. 565. 27 Perkins v. Fourniquet, 14 How. 328, 331.

28 Grantland v. Memphis, 12 Fed. R.

23 Leopold v. Godfrey, 50 Fed. R. 287. 145; supra, § 9.

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." 29"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." 30

"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.” 3 The

29 U. S. R. S., § 987; Cambuston v. U. S., 95 U. S. 285, 288: Emma Silver Min. Co. v. Parks, 14 Blatchf. 411, 413; Brown v. Evans, 18 Fed. R. 56.

30 U. S. R. S., § 988.

31 U. S. R. S., § 989; Cox v. Barney, 14 Blatchf. 289; Andrae v. Redfield, 12 Blatchf. 407; Frerichs v. Coster, 22 Fed. R. 637; Schell v. Cochran, 107 U. S. 625; U. S. v. Sherman, 98 U. S. 565; Campbell v. James, 3 Fed. R. 513; Dunnegan v. U. S., 17 Ct. Cl. 240, 247; White v. Arthur, 10 Fed. R.

80; Flanders v. Seelye, 105 U. S. 718. A certificate may be granted by a judge who did not try the case. Cox v. Barney, 14 Blatchf. 289. If, however, that judge has denied the application, another judge will rarely, if ever, grant it. Frerichs v. Coster, 22 Fed. R. 637. A certificate may be granted before or after an execution is issued. Cox v. Barney, 14 Blatchf. 289. A certificate cannot be granted before trial. Andrae v. Redfield, 12 Blatchf. 407. In case of appeal or

32

effect of this statute is after such certificate has been given to practically convert the suit against the officer into a claim against the United States. There is no liability on the part of the government until there has been a recovery against the officer, and a certificate of probable cause has issued. The same rule prevails as to an action against a person "for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty."

§ 381. Condemnation proceedings.-The Act of February 9, 1887, provides that "in every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses, he shall be, and hereby is, authorized to acquire the same for the United States by condemnation under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so, and the United States Circuit or District Courts of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney-General of the United States, upon every application of the Secretary of the Treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application at the Department of Justice." "The practice, pleadings, forms, and modes of proceeding in

writ of error, no money will be paid out of the Treasury upon the judgment until an affirmance by the appellate court and entry of judgment below in accordance with its mandate. Schell v. Cochran, 107 U. S. 625. The postmasters are not included within the statute. Campbell v. James, 3 Fed. R. 513. It has been held that after judgment neither the Government nor the collector is liable for interest. White v. Arthur, 10 Fed. R. 80. But see Schell v. Cochran, 107 U. S. 625. It has been held that when the Government has had no notice, actual or constructive, and no opportunity to defend, it is not concluded by the certificate of probable cause. Dunnegan v. U. S., 17

causes arising under

Ct. Cl. 247. The court is not justified
in granting such a certificate to a
collector of internal revenue who
acted at the request of a revenue
agent whose only authority was an
instruction from the chief clerk of
the supervisor. Frerichs v. Coster,
22 Fed. R. 637. The Supreme Court
of the United States, upon affirming
a judgment in such a case, will allow
interest on it, which will be included
by the court below in its judgment
of affirmance. Schell v. Cochran,
107 U. S. 625.

32 U. S. v. Sherman, 98 U. S. 565.
33 Ibid.; Cox v. Barney, 14 Blatchf

289.

34 18 St. at L., p. 371.

the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms, and proceedings existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any rule of the court to the contrary notwithstanding." This act is authorized by the Constitution. The petition should be brought in the name of the United States; but if originally filed in the name of the Secretary it may be amended accordingly. The proceeding is in substance and effect an action at common law." In the districts of New York, condemnation proceedings should follow the practice prescribed by Chapter xxiii, Title 1, of the Code of Civil Procedure, but it seems that the petition need not state the facts showing the necessity of the acquisition of the property, nor show that there has been an effort to acquire it by purchase, since those are not matters of form or practice." The provision in the Maryland statute that the petition shall be verified by an agent of the United States is inoperative upon a proceeding presented to the court by an officer designated by an act of Congress. It may be that the issues must be tried by a jury and not before commissioners in accordance with the State practice. If tried before a jury, the jury must be impaneled in accordance with the Federal statutes, and the trial be had before a Federal judge, not before a sheriff's jury, in accordance with the State practice.10 Where a trial was had before commissioners, it was held that a provision in the State laws, that the commissioners' report should be filed in the office of the clerk of the county, would not be followed," but that the report must be filed in the office of the clerk of the Federal court in which the proceedings are instituted.12 If a trial by jury is had by way of appeal from the award of

8

§ 381. 125 St. at L., ch. 728, p. 357. 2 Re Rugheimer, 36 Fed. R. 369; Kohl v. U. S., 91 U. S. 367; Boom Co. v. Patterson, 98 U. S. 403, 406; U. S. v. Jones, 109 U. S. 513.

3 Chappell v. U. S., 160 U. S. 499, 513. But see Re Rugheimer, 36 Fed. R. 369; s. C., 36 Fed. R. 376; In re Secretary of Treasury, 45 Fed. R. 396. 4 Chappell v. U. S., 160 U. S. 499, 513. 5 Ibid.; Re Rugheimer, 36 Fed. R. 876.

"In re Secretary of Treasury, 45 Fed. R. 396.

7 Ibid.

8 Chappell v. U. S., 160 U. S. 499, 513. 9 Ibid. But see Luxton v. North River Br. Co., 147 U. S. 337.

10 Chappell v. U. S., 160 U. S. 499, 513. 11 Luxton v. North River Br. Co., 147 U. S. 337, 340.

12 Ibid., 147 U. S. 337, 341.