
    Grove &c. v. Little &c.
    April, 1840,
    Richmond.
    (Absent Parker, ,T„ and Tucker, p.)
    united States Officers — Sureties—When Lands Liable — Advertisement of Sale. — under the act of congress approved May 15, 1820, allowing a warrant of distress against a delinquent officer and his sureties, the lands of a surety are only to be sold in the «vent of there not being goods and chattels of such officer or his sureties sufficient to satisfy the tvarrant; and they must be advertised for at least three weeks prior to the time of sale, in not less than three public places in the county or district where the lands are situate.
    3ame - Lands of Surety without Due Advertisement— Effect upon Title of Purchaser. — If the marshal, instead of levying and collecting the sum due by distress and sale of goods and chattels (when there are such) belonging to a surety, shall proceed to sell the lands of a co-surety; or If the lands of a surety be sold without being duly advertised, the conveyance of the marshal will not give a valid title to the purchaser, and a bill will not lie for such a purchaser to set aside a prior conveyance by the surety whose lauds were sold, upon the ground of its being fraudulent as to creditors.
    On the 16th of August 1823, William P. Craighill entered into a bond with Nathaniel Craighill, William Little, John Griggs, William Grove, William Vestal and Richard Duffield his sureties, payable to the United States, in the penalty of 50,000 dollars, conditioned for his faithfully discharging the duties of paymaster and military storekeeper at the United States army at Harper’s ferry.
    William P. Craighill died the 24th of March 1824, and on a settlement the 14th of June following, a balance was found due from him to the United States of 9232 dollars 66 cents.
    Under the act of congress, approved May IS, 1820 (3 Story’s Laws U. S. 1791), the agent of the treasury issued a warrant of distress; but it was not directed to the marshal of the district in which the delinquent officer had resided, or in which his sureties resided. Their residence was in the western district of Virginia, and the warrant was directed to the marshal of the eastern district.
    On the 18th of March 1826, the agent of the treasury addressed a letter to the marshal, stating that Little, one of the sureties, had been to Washington and solicited a stay of proceedings for a short time, to enable him to fulfil a contract with the war department, then in a course of execution, the proceeds of which were to be applied to the payment of the debt; and to raise whatever might be deficient from that source, it had been determined to allow the sureties a period of four months from that date, for paying the whole amount of the debt and closing the account.
    On the 31st of July following, the agent of the treasury addressed a second letter to the marshal, requesting him to suspend further proceedings on the warrant until the 1st of August 1827, upon the parties to the bond paying the costs.
    The payments by Little on account of the debt were made in December 1824, February, May and October 1825, and June 1827, and amounted altogether to 3428 dollars 87 cents. There was still a bal-anee due the x'United States from William P. Craighill of 5803 dollars 79 cents.
    In the 28th of September 1827, a warrant was issued to the marshal of the western district of Virginia, commanding him to proceed immediately to levy and collect the said amount of 5803 dollars 79 cents by distress and sale of the goods and chattels of William P. Craighill deceased, or of his legal representatives; and should there not be found sufficient goods and chattels to satisfy the same, then to levy and collect the said sum of 5803 dollars 79 cents, or so much thereof as might be due and unpaid, by distress and saje of the goods and chattels of Nathaniel Craighill, John Griggs, William Little, William Grove, _ William Vestal and Richard Duffield, sureties of the said William P. Craighill; and should there not be sufficient goods and chattels of the principal or of the sureties, then to levy upon and expose to sale at public auction, for ready money, to the highest bidder, the lands, tenements and hereditaments of the said William P. Craighill; and should there not be found sufficient lands, tenements and hereditaments of the said William P. Craighill, then to levy upon and expose to sale, in like manner, the lands, tenements and hereditaments of the said sureties.
    On the 10th of November 1827, the agent of the treasury addressed a letter to the marshal, stating that the sureties of William P. Craighill, who were then in Washington, had applied for six months indulgence, in order not only to enable them to make up the money for which they were bound, but to afford them time to try the experiment of making the whole or a part of the debt from the landed property of Craighill their principal; and under the circumstances of the case as detailed by them, which appeared to be one of hardship, he (the agent of the treasury) felt no hesitation in granting the indulgence solicited, provided the marshal  should consider the debt perfectly safe, or if not, then provided they would secure it to his satisfaction.
    On the 5th of February'1828, the agent of the treasury requested the marshal to suspend proceedings under the warrant against Grove and Duffield, two of the sureties, for 1 and 2 years, and proceed without delay agairst the legal representatives of the principal, and the other sureties.
    In reply to a letter from the marshal, the agent of the treasury wrote to him on the 27th of March 1828, as follows: “Mr. Richard Duffield and mr. William Grove, two of the sureties of William P. Craig-hill, having pledged themselves to me to pay the entire debt with interest of Craig-hiil in 1 and 2 years, the personal and real property of Craighill and >he other sureties is to be sold under the warrant in your hands, for their benefit, and on such terms and conditions as they shall prescribe: provided, however, they take upon themselves the responsibility of guaranteeing the sale to the purchaser or purchasers. The United States are not responsible in any event for the consequences which may result from the sale, and you will make this known at the time of the sale.”
    The marshal made a return upon the warrant, in these words: “Made 755 dollars from the estate of W. P. Craighill, 1524 dollars 54 cents from the estate of William Vestal, and 1000 dollars from the estate of Nathaniel Craighill. Richard Duffield and William Grove were the purchasers for the above amounts, for their own benefit, agreeably to the directions from the agent of the treasury.”
    The return of the marshal and his deed to Duffield and Grove, bore date the 29th of April 1828. The deed recited that the marshal levied the warrant upon a tract of land claimed to belong to Nathaniel Craig-hill, situate in the county of Jefferson, and described particularly in the deed by metes and bounds, “and having *duly advertised the time and place of sale of the said land according to law, proceeded to sell the same at public auction at Charlestown on the-day of-, at which sale Richard Duffield and William Grove became the purchasers, being the highest bidders, having bid therefor the sum of 1000 dollars.”
    In the mean time, to wit, on the 20th of August 1827, a deed had been made by Nathaniel Craighill to John E. Paige, conveying the same tract of land, upon certain trusts therein expressed.
    Grove and Duffield, after purchasing the land of Nathaniel Craighill thus previously conveyed, filed their bill in the superior court of chancery at Winchester in July 1828, impeaching the deed of the 20th of August 1827 as fraudulent and void, and setting forth, that under colour of this deed, William Little was in possession of a saw mill on the premises, and woodland adjacent, and was engaged in cutting down, sawing, and disposing of the timber. The bill made defendants Nathaniel Craighill, John EJ. Page, William Little, and others who might claim under the deed of August 20th 1827, to wit, the children of William P. Craighill, the children of William Little, the Farmers and Mechanics bank of Georgetown, and Samuel J. Cramer. And the prayer was, that. the said deed might be annulled ; that the plaintiffs might be put in full possession of the land which they had purchased"; and, until the merits of the case should be decided on, that an injunction might be awarded to restrain waste.
    An injunction was awarded accordingly. There was filed with the bill, as an exhibit, a transcript of the record in an action brought by John Grove against Nathaniel Craighill and William Little. By this record it appeared, that judgment was obtained in this action on the 20th of April 1813; that after the death of John Grove a scire facias issued on behalf of William Grove as his administrator, to revive the judgment, upon * which scire facias execution was awarded the 19th of September 1820; that a forthcoming bond was given, with Samuel J. Cramer as I surety, upon which judgment was rendered the 17th of April 1821; that on the 31st of August 1826 a scire facias issued to renew the judgment, upon which execution was awarded the 24th of August 1827; and that a writ of capias ad satisfaciendum issued the 12th of September 1827, under which Craighill was committed to jail, Little took the oath of insolvency, and Cramer was admitted to the bounds.
    The bill mentioned the fact that Nathaniel Craighill was confined in jail under this ca. sa. at the time of the sale by the marshal, and at the time of filing the bill. And the circumstance of the scire facias being on the docket at the time of making the deed of the 20th of August 1827, was relied on to shew the fraudulent intent of making that deed. But the bill did not assert any lien on behalf of Grove’s administrator by reason of the judgment.
    In the answer of William Little it is stated, that besides the land of William P. Craighill which the complainants bought for 755 dollars, they purchased under the same warrant several negroes belonging to his estate, for 580 dollars. It is admitted by the respondent that of the sums paid by him to the United States, about 1300 dollars was paid out of the funds belonging to Craighill’s estate; but having paid for Craighill’s estate more than 2000 dollars since his death, he claims to be considered, as having paid to the government the whole amount credited as paid by him. This amount was equal not only to his own quota as surety, but to that of Nathaniel Craighill also, and he was willing to have it considered that he had paid Craig-hill’s quota as well as his own. The land of Nathaniel Craighill, it is therefore insisted, should be regarded as discharged from the claim on account of which it was sold. It is farther insisted that the deed to Page was bona fide, and that the *sale under the warrant was not made in a fair and proper manner.
    In the answer of Nathaniel Craighill it is stated, that William P, Craighill left personal estate which ought to have been applied to the payment of the debt due the United States; that this respondent’s land was not duly advertised, and that the sale thereof was not fairly and properly made. These answers were afterwards amended. Nathaniel Craighill, by his amended answer, insisted that the sale was altogether irregular, in consequence of the failure of the marshal to have the warrant of distress recorded in the district court; and that it was illegal to sell any real estate,until all the personal estate, as ’well of the sureties as of the principal, was exhausted. He relied upon the fact of indulgence having been granted, without his assent, to William Little one of the sureties, and upon the stay of execution allowed as to the complainants; a stay allowed, as he said, under the belief of the agent of the treasurj' that the respondent was the principal and not merely a surety.
    It appeared by an additional return of the marshal, enclosed in a letter from him of the 23d of May 1828, that he sold three slaves the property of William P. Craighill, for 597 dollars, to Richard Duffield, who paid, for the marshal’s fees and the expenses of surveying1 four tracts of land, 283 dollars 95 cents, leaving a balance of 313 dollars 5 cents.
    By a report from the agent of the treasury to the secretary of the treasury, it also appeared that when the agent allowed a stay of proceedings as to the complainants, to give them time to subject the land of Nathaniel Craighill, he was under the mistaken impression that Nathaniel Craighill was the principal debtor. Grove and Duffield assumed the payment to the United States of the entire debt with interest, and at the date of the report (June 10, 1829) more than half of it had been *paid by them. By an account from the treasury department subsequently filed in the cause, it appeared that Grove and Dnffield paid 3000 dollars on the 9th of February 1829, and 3320 dollars 22 cents the 4th of February 1830, in full of the debt and interest.
    On the 29th of April 1830, on the motion of the plaintiffs, leave was given them to amend their bill, and the amendment was directed to be made in 60 days. It was never made.
    On the 9th of December 1830, the court, being of opinion that, to do justice to the parties, the defendants Craighill and Little should have leave to file a cross bill against the plaintiffs, asserting the pretensions of the defendants as stated in their answers, gave them leave to file such cross bill.
    The cross bill was accordingly filed, and an answer thereto put in by Grove and Duffield. In this answer it was mentioned, among other things, that Nathaniel Craig-hill had taken the oath of insolvency at the suit of Grove’s administrator, and that, at the sale by the sheriff, the plaintiff Grove became the purchaser of Craighill’s interest in the land at the price of 1505 dollars. Along with the answer was exhibited a copy of the sheriff’s account of sales, and a copy of the deed from the sheriff to Grove.
    The children of William Little and of William P. Craighill filed an answer to the original bill, insisting, among other things, that the warrant was not lawfully issued against the representatives of William P. Craighill, and that it could not be levied on any real estate until all the personal estate, as well of the sureties as of the principal, had been exhausted; and alleging that Grove, Duffield and Griggs had, at the time of the levy and sale, a large and valuable personal estate.
    There was filed a copy of the account of sales of the personal estate of William P. Craighill by William Grove his administrator, and a copy of the administration account, '"whereby it appeared that the administrator had received 745 dollars 66 cents, that the funeral expenses, charges of administration, and commissions amounted to 289 dollars 49 cents, and that the balance and more was disbursed in paying executions against the deceased, debts binding his heirs, and due bills and accounts.
    It was proved that at the time of the sale of Nathaniel Craighill’s land by the marshal, Grove and Duffield had considerable personal property, consisting of negroes, horses, cattle &c. Indeed, in their answer to the cross bill, they stated the fact that the warrant of the 28th of September 1827 was levied on their personal property in November of that year. The sale of it was prevented by the arrangement made by Grove and Duffield with the agent of the treasury.
    There was evidence tending to shew the insolvency of Griggs, and that the land of Nathaniel Craighill was not duly advertised. And there was also much evidence in relation to the conduct of the parties. It was the object of Grove and Duffield to shew that Nathaniel Craighill’s deed was fraudulent, and that the funds out of which Little made payments to the United States were not his own.
    The causes being removed to the circuit court of Jefferson, came on to be heard in that cou,rt the 10th of April 1833, upon the bills, answers, depositions and exhibits: on consideration whereof, the court decreed that the injunction granted in the first case be dissolved, that both the original bill and the cross bill be dismissed, and that the plaintiffs in each case pay to the defendants in each case their costs.
    On the petition of Grove and Duffield, an appeal was allowed them.
    Leigh, for the appellants, admitted the general principle that a creditor at large cannot come into equity to set aside a fraudulent conveyance by his debtor. But, he 'x'said, where it is competent to an officer of the treasury to issue a distress warrant for the sale of lands to satisfy a debt, quoad such debt the United States cannot be considered creditors at large. As the lien of a judgment is the mere result of the capacity to sue out an elegit to take the debtor’s lands, so the lien, in the case of a debt to the United States for which a distress warrant lies, results from the capacity to issue the warrant. And a surety paying a debt to the United States is entitled, on general principles, to be subrogated to the rights of the United States against the principal debtor and cosureties. Lnders &c. v. Bruñe, 4 Rand. 438. On this ground alone the plaintiffs might have been entertained in equity; and if the bill is not suited to their case, they should have been allowed to amend it.
    Supposing the claim of the plaintiffs to be merely as purchasers, the question is whether the marshal’s deed passed title, without proof of his compliance with all things which the statute makes prerequisites to the sale. Is this question to be determined by analogy to the case of a sale by a marshal or sheriff for taxes, or to the case of a sale by such officer under execution? If the analogy be to sales for taxes, it must be conceded, upon the authority of Christy v. Minor, 4 Munf. 431; Chapman v. Bennett, 2 Leigh 329, and Williams &c. v. Peyton’s lessee, 4 Wheat. 77, that the plaintiffs shew no title. But the analogjr is properly to sales under execution ; and in such cases, though the officer is liable if there be irregularity, yet his conveyance passes title. It is said that according to the words of the statute, the'conveyance only gives title to lands “sold in pursuance of the authority afore-sáid;” and upon the previous words, declaring that the amount due shall be a lien upon the lands from the date of a levy and a record thereof, the objection is taken that here there was no such record as the statute contemplates, and so there never was any lien; and the further objec- " tion is *taken that the land was not duly advertised. But is it the fair interpretation of the statute, that objections of this kind shall avail here? There may have been malfeasance or nonfeasance by the marshal, for which he may be liable to make compensation, and yet it may not avoid the sale and conveyance. Redress majr be had in such case by injunction, and a court of the United States is the proper forum. .As to the objections that the personal property had not been exhausted, and that N. 'Craighill’s proportion of the debt had been satisfied by Uittle, it is enough to say, as to the former, that there was no personal property besides that levied on, and as to the latter, that the payment was out of the funds of the principal.
    In any point of view, there is a clear ground of relief by force of Grove’s judgment and execution. Moreover it was improper to dismiss the bill in toto, without any reservation of the rights of the sureties for money paid.
    Robinson for the appellees.
    The constitutionality of the act of congress under which the warrant issued was much discussed in Randolph’s case, 2 Brock. R. 447. It was said in that case, that to sustain the validity of the statute, the agents, in its execution, must be regarded as purely ministerial, and the authority strictly pursued, and the act, in its construction, be confined to the letter. Such agents, it is said, “cannot act on other persons or on other subjects than those marked out in the power, nor can they proceed in a manner different from that it prescribes.’’ (p. 480.) Thus regarding the statute, the court will find itself relieved from the necessity of considering its constitutionality, for the case will be found to be one in which the statute has not authorized the warrant 'to issue.
    By the terms of the statute, the agent of the treasury is to proceed against 1 ‘such delinquent officer.” There is no authority at all to proceed except where *'the officer is alive. To allow such a proceeding against the estate of a dead person would be most unwise. For want of proper information on the part of the decedent’s representative, he might be certified to be a debtor to a much greater amount than was really due. Before a representative qualified, the whole estate might be sacrificed. And even if there weré a qualification on the estate, the proceeding is so summary that the sacrifice might be made before the assets were collected. Infant heirs might have the whole .of their lands sold for a small portion of their value. It ought not to be supposed that the legislature intended to authorize a proceeding' so injurious to the creditors, heirs and distributees of a decedent, when there is nothing in the act itself to shew any such intention. On the contrary, it is manifest that it contemplated proceedings where the delinquent officer was alive. The warrant is to be directed to the marshal of the district in which such delinquent officer and his sureties shall reside. And the marshal is to proceed to levy the money by distress and sale of the goods and chattels of such delinquent officer. This provision cannot be complied with, where the goods and chattels of the officer have come to the hands of an administrator and been sold by him. And yet there might be assets in the hands of the personal representative of the officer, equal to the whole amount of the debt. In this very case there is an account of sales of the personal estate of the officer, made by William Grove his administrator, to a considerable amount; and though, by the administration account, the proceeds appear to have been disbursed, yet the debts paid must have been of inferior dignity to that due the United States. Again, the statute provides that if the goods and chattels of the officer be not sufficient, his body may be taken; that notwithstanding the commitment of the officer, or if he abscond, the goods of the sureties may be taken; that *the amount due shall be a lien upon the lands of such officer and his sureties from the date of a levy; and that all moneys which may remain shall be returned to such delinquent officer or his sureties. All these provisions are incompatible with the issuing of a warrant after the death of an officer. How can the amount due be a lien upon the lands of the officer, when the officer is dead and has no lands? The decision in Glassford v. Hackett, 3 Call 193, in which a motion was denied against executors under the act in 1 Rev. Code, ch. 113, (j 2, p. 447, is in point.
    II. Though the warrant were regarded as legally issued, still the sale of the lands of Nathaniel Craighill, one of the sureties, was wholly illegal. 1. The marshal should have proceeded to raise the money by distress and sale of the goods and chattels of the delinquent officer. Passing by the fact that there was money in the hands of Grove his administrator (the very party who procured the warrant to issue), there was no levy upon anjr goods of the officer until after the lands of Nathaniel Craighill the surety had been sold. 2. The provision of the law requiring the money to be raised by distress and sale of the goods and chattels of the sureties, was wholly disregarded. Grove and Duffield had a large personal property, and yet, without selling this property at all, the land of Nathaniel Craighill a cosurety was taken and sold. On this point, the case of the United States v. Graves &c., 2 Brock. R. 379, is-decisive. It was a case under the act of 1813 (2 Story’s Haws U. S. p. 1381, § 6), but the principle is strictly applicable. 3. Until a record, in the office of the clerk of the district court, of a- levy in pursuance of the warrant, there was no lien upon the lands; and no such record appears to have been made. 4. The provision of the statute requiring an advertisement for at least three weeks, in not less than three public places in the county or district where the real estate is situate, '“does not appear to have been complied with; the recitals in the marshal’s deed not being even prima facie evidence. Jackson v. Shepard, 7 Cow. 88. If the argument were sound, that the decision should be by analogy to a sale under execution, the analogy is not to a sale of goods, but to a sale of lands under execution, in relation to which the rules are more strict. Thus in Louisiana, the statute requires that the judgment, on which execution issues, should be recited in the deed of sale given by the sheriff; and it has been declared that the omission of that recital prevents the transfer of the title to the buyer. 4 Kent’s Comm. 434, citing Dufour v. Oamfranc, 11 Martin 607, and Durnford v. Degruys, 8 Id. 222, But in truth there is no analogy to the case of a sale under an execution, or a sale under a decree, for the party has no day in court. The remedy given in the 4th section is an injunction to slay proceedings on the warrant. No means are given by the statute for enquiring into the regularity of the sale. It must of necessity be enquired into when a party comes into court, claiming under the sale. The statute is to be construed by analogy to sales for taxes. S. The lands of Nathaniel Craig-hill could only be sold to raise what he was bound for. The principle is, that if, by any arrangement between the creditor and a surety, his cosurety would, after making payment, be unable to enforce a claim to contribution, he is thereby discharged. 1 Suppl. to Ves. jnn. p. 512, in note on Ex parte Gifford, 6 Ves. 805; Pothier on Oblig. pt. 3, ch. 1, art. 6, $ 2, p. 332, 3 of am. edi. Applying this principle to the facts appearing in this cause, Nathaniel Craighill was bound for nothing. In another point of view nothing was due from him. According to the administration account on the estate of the delinquent officer, his administrator has received 745 dollars 66 cents, and his allowances for funeral expenses, charges of administration, and commissions, amount to 289 dollars 49 cents, leaving 456 “'dollars 17 cents. To this add 597 dollars for the three slaves of the principal, and 755 dollars for his land, and the sum of the principal’s credits is 1808 dollars 17 cents, which deducted from 9232 dollars 66 cents, left 7424 dollars 49 cents. Now there were originally six sureties, but of these John Griggs was insolvent. Dividing the sum last mentioned into five parts, the portion of each was only 1484 dollars 89 cents; so that what Little had paid was equal to his portion and that of Nathaniel Craighill. Nor were there any portions of others for which the land of Nathaniel Craighill could be sold. Vestal’s portion was made from the sale of his land, and the portions of Grove and Duffield were discharged. Even if no credit be given to Little for his pa3rmenis, there was very little due from Nathaniel Craighill. Considering 1300 dollars of those payments as made out of the funds of the principal, and adding that amount to the 1808 dollars 17 cents, there will be a sum of 3108 dollars 17 cents to be deducted from the 9232 dollars 66 cents, which will leave 6124 dollars 49 cents, one fifth of which is 1224 dollars 89 cents. In any point of view, only so much of the land of Nathaniel Craighill should have been sold as was necessary to pay the sum last mentioned. But instead of selling only a small part of the tract for a small part of the debt, the whole tract was sold for the whole debt, which was not only unjust and oppressive, but illegal. Stead’s ex’ors v. Course, 4 Cranch 403.
    III. The ground taken, that the plaintiffs have a right to come into equity even though the sale were illegal, cannot be sustained. 1. The bill asserts no claim of the plaintiffs except as purchasers at the marshal’s sale. 2. When the suit was commenced, no other claim could have been asserted, because the plaintiffs had paid no money whatever. 3. If, before commencing this suit, they had been creditors for money paid as sureties, entitled to contribution from their cosureties, still, being “mere creditors at large, they could not come into equity to set aside the conveyance. But it is said that the United States arc something more than creditors at large, and the sureties, by sub-rogation, more also. The argument is, that as, before an elegit issues, there is a lien because of the capacity to sue out an elegit, so, before the distress warrant issues, there is a lien because of the capacity to sue out the warrant. The fault of the argument is this — When the elegit issues, it relates back, in terms, to the date of the judgment. Not so with the warrant. There can, from the very nature of it, be no lien before it issues. And if a surety pajrs the debt before the warrant issues, he can have no lien upon the lands of a cosurety. The surety has the benefit of such lien as exists at the time of the payment, and no more. If, for example, the surety of a sheriff or other debtor to the commonwealth pays off a debt before the commonwealth proceeds, the surety cannot move in the general court, nor can he sue out execution to sell the lands of the principal. The case of Enders &c. v. Bruñe is perfectly consistent with this view; so too are the cases of The United States v. Preston &c., 4 Wash. C. C. R. 446, and Pollock v. Pratt &c., 2 Wash. C. C. R. 490.
    IV. As to the judgment of Grove’s administrator, it is, in the first place, questionable whether his separate claim could have been united with the joint claim of Grove and Duffield. But if it could have been so united, it has not been. No claim is asserted under the judgment. The bill itself states that at the time of filing it, Craighill was in execution under a ca. sa. upon the judgment; and in such a state of things a creditor has no right to come into equity. Moreover, since the suit was brought, Craighill has taken the oath of insolvency, the property mentioned in his schedule has been sold, and the judgment stands as satisfied.
    V. Leave was given to amend the bill; but the amendment was never made, and three years elapsed “after the leave thus given, before the bill was dismissed. There was no occasion for any reservation in the decree, of the rights of the sureties for money paid. The decree in their case as purchasers would be no bar to a proceeding for money paid by them as sureties.
    Leigh, in reply. The main question is, in what light is the proceeding under the act of congress to be regarded? Whether as a proceeding purely ministerial in its inception, progress and consummation, in which the agent of the treasury, in issuing the warrant, and the marshal in executing it, acted in utter exemption from all direct control or correction of the courts of the United States, like a marshal or sheriff selling lands for taxes, so that the regularity of their respective proceedings can be nowise directly7 brought in question and their acts avoided, but only enquired into collaterally when a claim is asserted under those acts? Or whether the proceeding is not rather to be regarded as analogous to proceedings of a marshal or sheriff in sales of property under execution or decree, in which, though the officer acts ministerially and exercises a naked power, yet his acts are subject to examination and correction by the court in a direct proceeding for the purpose, and can only be so corrected, and, if consummated, cannot be questioned afterwards collaterally? If the first view be correct, the decree is right, if for no other reason but the want of proof of due advertisement; and then all the other objections are supererogatory. But if the last view be correct, then all those objections may safely be admitted, and yet it is too late now to urge them; neither is this a proper case, nor this the proper forum, in which the defendants can avail themselves of them. The proceeding is certainly anomalous, but its constitutionality can hardly be doubted in respect to officers and their sureties who incur responsibility under and in reference to the act; neither, in respect to such, is it a harsh or unjust, though it is a summary proceeding. *The regularity of the proceedings might have been directly called in question in the federal courts, and they were the proper and the only jurisdiction to examine and correct them. Can it be doubted, that if this be a case in which the agent of the treasury had no right to issue a warrant, the marshal might have been arrested in his execution of it by application to the federal court? Or that if the marshal proceeded to levy on the property of sureties before exhausting the process against the principal debtor, or on lands before exhausting the process against the goods, the federal court would have been open to redress the wrong? Under the provision of the 4th section of the act of congress, an application for an injunction would have been proper on each and every ground urged here. And if resort could have been had to the federal court, that was the proper remedy, and that the proper forum. Congress have authority to execute their own laws of revenue and finance, and the federal courts have exclusive jurisdiction to. enforce them.
    If the proceeding be regarded in analogy to sales under executions or decrees, then the Louisiana decisions present no difficulty. They are cases of sales under execution, in which the statute required the judgment to be recited in the instrument of conveyance. It is exactly as if the statute had required a conveyance by instrument under seal, and the conveyance had no seal.
    
      
      Juixie Parker made tile final decree in the court below, and Jedge Tuckeb sat in the cause in its previous stages.
    
   STANARD, J.

The claim asserted by the original bill of the appellants is, that they have purchased a tract of land at a sale made by the marshal of the United States under the authority of a treasury warrant issued against Nathaniel Craighill the former owner of the land, and other sureties of William P. Craighill. Their complaint is that before such sale the land in question was fraudulently conveyed by N. Craighill to some of the defendants, for the benefit of others of them, and the relief ^sought is a decree to set aside the said fraudulent conveyance, and to give them possession of the land.

The title to the relief depends, 1st. on the establishment of the validity of the title of the appellants under their purchase at the marshal’s sale, supposing the previous conveyance of Nathaniel Craighill had not been made; and 2dly, on convicting that conveyance of the imputed fraud, or of some other infirmity which deprives it, or ought in the judgment of a court of equity to deprive it, of any efficacy in respect to the antagonist title from the sale and conveyance.

The title of the appellants under the sale and conveyance has been objected to on various grounds: and the first enquiry is that presented by the proposition, to the maintenance of which the force of the able argument of the appellant’s counsel was mainly directed, to wit, that the court cannot, in this litigation, take cognizance of objections to the title claimed under the sale and conveyance of the marshal, founded on the irregularities of that officer in the levy and sale, but that such objections could only be urged in the federal court, under the fourth section of the act of congress authorizing the proceeding by distress warrant.

To this proposition I cannot assent. The remedy given by the 4th section is against the warrant as issued, and is intended to protect from injury that might result from the undue emanation of the process, or excess in the amount for which it might emanate; not to redress injuries resulting from the undue or irregular execution of it. It is insisted, further, that the proceedings under the warrant are analogous to those under an execution from a court of record, and that irregularities in the proceedings of the officer must be corrected by application to the authority from which the process emanates, and cannot be urged in another forum against the title derived from the execution of the process. The analogy is not *a sound one. In case of the warrant, the process does not issue from a court; and though the act directs that a record of the levy shall be made in the officer of the clerk of the district, it gives the court no cognizance over it, nor does it direct that the marshal shall make return, or record of any kind, of his proceedings in further execution of the warrant. The party then had no day in court to urge objections to the undue levy and sale under the warrant. The sale under the warrant bears a stricter analogy to one for the nonpayment of taxes, than to one under an execution issuing from and returnable to a judicial authority. The whole proceeding in both is ministerial; all the functionaries are ministerial, executing power conferred by law ; and the title is derived under the law, only in cases in which it appears that the authority which the law gives has been strictly pursued. Like power derived from the conventions of individuals, it cannot displace or transfer property from one to another, unless it be pursued: and to the title claimed under it, the due execution of the power, according to the provisions which direct and limit its exercise, is as necessary as the power itself. Title is the offspring of the conjoint operation of the power and the due exercise of it; and he who asserts it is equally bound to shew the one as the other.

The title of the purchasers under the sale and conveyance of the marshal is, I think, liable to be repelled by shewing that the levy and sale were not duly and regularly made; especially by parties holding the attitude of defence: and in this case the purchasers have not only failed to prove that in the levy and sale the directions of the act were observed, but the defendants have affirmatively shewn a deviation from them in several respects. Under the mandate of a warrant issued in pursuance of the act, the lands of a surety were not liable to be levied on and sold, but in defect of the goods and chattels of the principal and sureties; and *yet, in this case, no such want of goods and chattels appears. On the contrary, it affirmatively appears that two of the sureties (Grove and Duffield) had large personal estates. It does not appear that the sale was advertised as directed by the act. There are other objections to the sale ; but it is unnecessary to enumerate or further consider them. Indeed, the counsel of the appellants almost conceded, that if in this litigation the court could take cognizance of the objections to the regularity of the levy and sale, to defeat the convej'ance of the marshal, the title of the appellants as purchasers could not be sustained: and such is my opinion, without any concession of counsel. The nullity of the appellants’ title under the sale and conveyance renders it unnecessary to decide the question whether the convej'ance of Nathaniel Craighill be or be not fraudulent.

It is further insisted on behalf of the appellants, that though they may not be entitled as purchasers, yet they have, by their payment of the purchase money, discharged the claim of the United States; that that claim was a lien on the land in question; and that they, by substitution, are entitled to charge the land, to the extent of the amount paid on their purchase. No such claim is asserted by the appellants in their pleadings; and their counsel, conscious of this, insists that it appears in the proofs, and that it was fhe duty of the court below to have authorized or directed an amendment of the pleadings, for the purpose of giving the appellants relief on this ground of claim.

It is sufficient to say, that it was not the official duty of the court to direct the amendment, and that the omission of the appellants to ask leave, or to use the leave to amend, cannot in this court be objected as an error of the court below. Nay more, I think it is matter at least of grave doubt, whether such an amendment ought to have been authorized by the court. The parties had been engaged in a tedious and expensive litigation of a '^title asserted by the appellants. That litigation had swelled the record to a considerable size. The title litigated had failed, and the claim to be asserted by an amended bill was distinct from, and even incompatible with, that involved in the previous litigation. To permit the new and inconsistent claim to be brought forward by an amended bill, would have blended the new with the old controversy — would have incumbered the record with the volume of matter belonging to exploded and abortive litigation, and would have exposed the parties to the costs of imbodying all that useless matter in the record relative to the new claim : this useless expense to the parties producing only annoyance and inconvenience to court and counsel, especially in the event of appellate proceedings. And what advantage could result from this course of proceeding? Time would not be saved, because it would take as much time to mature the suit on the new claim asserted by an amended, as .though asserted by an original bill. The only effect would be to save the plaintiffs from a decree for the costs of the suit touching their abortive claim: and this is an effect which certainly does not recommend such a proceeding to the favour of the court.

The cross bill is but a pendant to the original, the object and function of which is to qualify or modify the relief that is sought by the original bill. But as that relief would not be granted though the cross bill had not been filed, the cross bill is supererogatory, and ought to be dismissed.

I am of opinion to affirm the decree.

The decree of the court of appeals was entered in the following terms:

“The court being of opinion that whatever claim the appellants, or either of them, have by substitution to the rights of the United States, or as cosureties of N. Craig-hill, or under the judgment, on an execution on *which N. Craighill was taken, or on the purchase by the appellant Grove of the interest of N. Craig-hill in the land, at the sheriff’s sale of the property surrendered bj' him on his discharge, pending this suit, as an insolvent debtor, those claims cannot be adjudicated in this case, they not being embraced by the pleadings, and will remain without prejudice from the decree of the court below, or the affirmance thereof by this court; and being further of opinion that there is no error in the said decree;” the same is affirmed, with costs.  