12 be a ground for a continuance." Where a plaintiff has recov ered judgment against a solvent defendant, and process is outstanding in the nature of an execution to collect the same, it is not proper to require the plaintiff to make a deposit to secure costs due a commissioner. It was held in New York, by Chancellor Kent, that a person who sued in another's right, as an executor or administrator, could not be compelled to give security for costs; 13 but the receiver of a national bank appointed by the Comptroller, when suing in another district, has been compelled to file security for costs.14 The United States and parties suing or defending under the direction of any Department of the government are by statute exempted from liability to give security for costs, at least upon appeals and writs of error.15 Persons allowed to sue in forma pauperis are not obliged to file security for costs originally or on appeal.16 The usual security required is a bond or undertaking with a sufficient surety for two hundred and fifty dollars," but the plaintiff may at any stage of the case be obliged to file additional security.18 In one case a bond for two thousand dollars was required.19 In the District of Ohio it is held that a surety to a bond is a party to the suit, and that his liability can be enforced by summary proceedings after the final decree; that the statute of limitations does not begin to run in his favor until the final decree; and that security "for costs " includes the costs of an appeal.20 Where a State statute made the indorser of a writ liable for the costs, it was held that he remained liable for costs in both State and Federal courts after a removal." CHAPTER XXVI. ENFORCEMENT OF DECREES AND ORDERS. 7 $339. Enforcement of decrees and orders in general.Decrees and orders are enforced in seven ways: by writ of execution,' by attachment,2 by writ of sequestration,3 by writ of assistance, by the action of the court itself through the medium of a master or receiver, and by bills to carry decrees into execution. Equity Rule 10 provides as follows: "Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause.' 1 § 340. Executions.-The rules provide that "final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the Circuit Court in suits at common law in actions of assumpsit." A decree for a deficiency after a sale of mortgaged property in a foreclosure suit is enforced in the same manner.2 By a statute passed June 1, 1872, and re-enacted December 1, 1873, "the party recovering a judgment in any common-law cause in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereinafter enacted which are adopted by general rules of such Circuit or District Court; and such courts may, from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid by execution or otherwise." In cases where an appeal lies to or a writ of error may issue from the Supreme Court, or from a Circuit Court of Appeals," the execution cannot issue until the expiration of ten days from the entry of the decree or judgment. The writ may, however, be previously prepared by the clerk. The marshal in the courts of the United States has duties analogous to those of the sheriff in the different States. It is his duty "to attend the District and Circuit Courts when sitting in his district, and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty." He has the right under the direction of the Attorney-General to protect judges of the courts of the United States while in the discharge of their official duties, and while on their way to hold court, and if necessary, to take human life in their defense." "The marshals and their deputies have, in each State, the same powers in executing the laws of the United States, as the sheriffs and their deputies in such State have by law, in executing the laws thereof." 10 Under these provisions of the Revised Statutes, the marshal or his deputy, if resisted when in the performance of his duty, may call to his aid a sufficient force from his district, called the posse comitatus, or power of his county, from the corresponding force which the sheriff or county officer has at his command," — that is, such number of men as are necessary for his assistance in the execution of the writs of the United States; and therein every person above the age of fifteen and able to travel is bound to be aiding, and if they re 3 U. S. R. S., § 916. See Lamaster v. Keeler, 123 U. S. 376; and infra, $ 380. 4 U. S. R. S., § 1008. 9 In re Neagle, 135 U. S. 1; s. c., 39 Fed. R. 833. 10 U. S. R. S., § 788; In re Neagle, 135 U. S. 1, 68. It has been held that 5 Danielson v. Northwestern Fuel this gives to the marshals the same Co., 55 Fed. R. 49. and no more power to arrest without 6 Board of Com'rs v. Gorman, 19 a warrant than is conferred by the Wall. 661. State statutes upon the said officers. 7 In re Neagle, 135 U. S. 1; s. C., 39 In re Acker, 66 Fed. R. 290, 294. Fed. R. 833; U. S. R. S., § 788. 8 U. S. R. S., § 787. 116 Op. Atty. Gen. 466, 469. fuse to assist, may be punished by fine and imprisonment.1 It has been said, that this force by the common law included all persons, whatever might be their occupation, whether civilians or not; and including the military of all denominations,militia, soldiers, marines,- all of whom were alike bound to obey the commands of a sheriff or marshal. "The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus." 13 An act of Congress has, however, provided, that "it shall not be lawful to employ any part of the army of the United States as a posse comitatus, or otherwise for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress." Under this statute, it seems that the aid of the army cannot be obtained by a marshal unless the President shall employ it to suppress insurrection after a proclamation commanding the insurgents to disperse.15 The marshal and his deputies may carry arms and use force in the execution of their official duty although a State statute forbids carrying concealed weapons; 16 but they may not make arrests nor carry arms outside of the districts for which they are appointed. 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 run and be executed in any part of such State; but must be issued from and made returnable to the court wherein the judgment was obtained.18 In such a case, the writ may be executed, by the marshal of the district from which it was issued, in the other district without any independent writ being directed to him for that purpose.19 All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State or in any Territory, but they must be issued from, and made returnable to, the court wherein the judgment was obtained.20 Where a marshal takes 12 Bac. Abr. Sheriff (11). at L. 145; 1 Sup. U. S. R. S. 363. 15 16 Op. Atty. Gen. 162; U. S. R. S., $$ 5298, 5300. 16 U. S. ex rel. McSweeney v. Full hart, 47 Fed. R. 802; Sifford's Case, 5 Am. Law Reg. 659. 17 Walker v. Lea, 47 Fed. R. 643. 18 U. S. R. S., § 985; infra, § 380. 19 Prevost v. Gorrell, 5 W. N. C. (Pa.) 151. 20 U. S. R. S., § 986. possession of property not subject to execution which is owned by a party to the writ, the case is one which arises under the laws of the United States, and the Federal Circuit Court has jurisdiction of a suit to recover the property." So is a suit against a marshal for infringing a State statute which had been adopted by a rule of a court of the United States. It has been held that, where a marshal under an execution in equity has seized the property of a person not a defendant to the writ, such third person cannot file a petition pro interesse suo to recover possession, but that his remedy is an original bill, or an action at law; 23 that such a suit arises under the laws of the United States, when the marshal claims that the property belongs to the defendant to the writ; but that it does not when the marshal makes no such claim.25 3 § 341. Contempts.- An attachment is the proper process to compel obedience to a decree or order requiring the performance of a specific act other than the payment of money,1 or to punish a contempt of court. It seems, that in districts held in States where imprisonment for debt has been abolished, disobedience to a decree or order for the payment of money cannot be punished by attachment; unless the defaulting party is an officer of the court, as an attorney, or has bid in property at a judicial sale; or the motion is made by a master or the clerk of the Supreme Court to compel payment of his fees. The older cases both in the English Chancery and the Federal courts hold that it is a contempt to criticise in the press the conduct of the court,' and to publish anything which may create a prejudice against either party to a pending cause. 5 21 Front St. Cable Ry. Co. v. Drake, 65 Fed. R. 539. 22 Sowles v. Witters, 46 Fed. R. 497. 23 Ex parte Mensing, 55 Fed. R. 17. Contra, St. Paul, M. & M. Ry. Co. v. Drake (C. C. A.), 72 Fed. R. 945; supra, § 917. 24 Bock v. Perkins, 139 U. S. 628. 25 Buck v. Colbath, 3 Wall. 334. § 341. Rule 8; Mallory Mfg. Co. v. Fox, 20 Fed. R. 409. R. 409; Nelson Morris & Co. v. Hill, 89 Fed. R. 477. 4 Jeffries v. Laurie, 27 Fed. R. 195; Re Pitman, 1 Curtis, 186; Bagley v. Yates, 3 McLean, 465; The Laurens, 1 Abb. Adm. 508; Re Paschal, 10 Wall. 483; U. S. v. Mann, 2 Brock. 9. 5 Camden v. Mayhew, 129 U. S. 73. 6 Equity Rule 82; S. C. Rule 10. 7 See the language of Lord Chancellor Hardwicke in 2 Atk. 469, 471: 2 U. S. R. S., § 725; Re Chiles, 22 Hollingsworth v. Duane, Wall. C. C. Wall. 157. 3 Mallory Mfg. Co. v. Fox, 20 Fed. 77, 100; U. S. v. Duane, Wall, C. C. 102. 82 Atk. 469. |