Williams v. Chew

6 Mart. (N.S.) 463 | La. | 1828

Martin, J.

delivered the opinion of the eourt. The defendant, collector of the States for the port of New-Qrleans, having re- „ , ... , a sum of money from the marshal, as his portion of the proceeds of the sale ofsundry goods of the plaintiff ⅛, condemned in thedis-jrict court of the U..S. for a breach of the reve-laws,>s sued, in an action for money had and received, the decree of condemnation having been reversed in the supreme court of the United States.

whether appeals or roítSbyf ⅛ evérycase cutions\ exC' Qttere.

The answer admits the seizure, condemnation and reversal of the judge of the district court, but avers that the supreme court sent back the case to the district court for an amendment of the pleadings and further proceedings on which the plaintiff had judgment, but an appeal was taken “by the U. S. and is still undetermined and pending in the supreme court of the United States.

The court below gave judgment of nonsuit, being of opinion that the suit was prematurely brought, the appeal leaving the case and all the orders taken in it, in the state in which they were before the judgment. That the judgment being in abeyance by the appeal, every thing is suspended thereby, except the execution, which the plaintiffis at liberty by statute to take

We concur in the opinion expressed by the judge a quo, except as to the right of the plaintiff to take execution, on which we express no opinion, the case not requiring one. It is true, in ordinary cases, appeals or writs of error do not prevent execution to issue when the appellant or plaintiff in error does not give a bond with sureties. Perhaps the U. S. enjoy an exception to the general rule, they pay no costs or damages, consequently give no security; and their appeal or writ of error perhaps suspends the execution in every case.

Hennen and Pierce for the plaintiff, Smith for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.