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October 1, 1875


ERROR to the Circuit Court of the United States for the District of Louisiana. The facts are stated, and the assignment of errors is referred to, in the opinion of the court. Submitted on printed arguments by Mr. Thomas J. Semmes, in propria persona, and Mr. Robert Mott, for the plaintiff in error, and by Mr. Solicitor-General Phillips and Mr. Assistant Attorney-General Edwin B. Smith for the defendant in error.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Proceedings in rem were instituted in the District Court on the 7th of August, 1836, under the confiscation act of the 17th of July, 1862, against certain real property of the respondent; which proceedings resulted, on the 5th of April, 1865, in the condemnation of the property described in the libel. On the 11th of the same month a writ of venditioni exponas was issued, commanding the marshal to sell the property on the 18th of the same month; but the marshal did not sell the same on that day, for the reason, as appears by his return, that the best price bid at the time and place of the sale did not amount to two-thirds of the appraised value of the property; and, for the reason stated, the marshal withdrew the property from sale, and again advertised the same for sale, as directed by the prior order of the court.

Two lots of land were embraced in the libel and the decree of condemnation, which, in fact, were not the property of the respondent. Accordingly, the true owner of the same in the mean time–to wit, on the 2d of May, 1865–filed a petition in the same court, setting forth his right to the two lots in question, and stating that they were improperly advertised for sale by the marshal, and prayed the court to open the decree to allow him to assert his title.

Consent in writing to that effect having been given by the district attorney, the court subsequently entered a decree opening the decree of condemnation for the purpose of enabling the petitioner to submit to the court his claim to those lots, as evidenced by the proofs on file. Pursuant thereto, the court, on the 31st of May in the same year, rendered judgment, restoring those two lots to the intervenor, as claimed in his petition.

Such correction of the decree of condemnation having been made, the return of the marshal shows that he sold the residue of the lots condemned, in pursuance of the second advertisement, to E. W. Burbank, for the amount specified in the record, and that he paid the money over to the clerk of the court.

On the 4th of March, 1868, the respondent having first suggested that the decree of condemnation had been opened, and that a portion of the property libelled had never been condemned by any subsequent decree, moved the court to set aside the default against him, and for leave to file his claim and answer. Hearing was had on the motion, and the court ordered that the purchaser of the property should be made a party to the rule. Burbank, the purchaser, accordingly appeared, and filed an exception to the rule, that his rights as purchaser could not be questioned in such a form of proceeding, and offered in evidence the deed of the marshal and the decree of condmnation, together with the writ of venditioni exponas. Both parties were again heard; and the court, on the 15th of April in the same year, overruled the exceptions of the purchaser, and set aside the default of the respondent, and granted him leave to file his claim and answer.

Leave to that effect having been granted, the respondent filed his answer, alleging his ownership of the property, the insufficiency of the allegations contained in the libel, and denied that the President ever authorized the seizure of his property, and averred that he had been pardoned by the President, and that he was included in the general amnesty proclamation. Proofs were introduced; and the court, on the 27th of June following, entered a final decree, dismissing the libel, and restoring the property to the respondent upon the payment of all costs.

Proper steps were taken in behalf of the United States to sue out a writ of error, and the cause was by the United States removed into the Circuit Court, where the decree of the District Court was in all things reversed, and a decree entered in favor of the United States, that the decree of condemnation originally pronounced by the District Court stand and remain in full force and effect, and that the sale made by virtue thereof do stand confirmed. Whereupon the respondent sued out a writ of error, and removed the cause into this court.

Certain formal errors are assigned as follows, which will first be considered:––

1. That the writ of error from the Circuit Court to the District Court was made returnable on the first Monday of December, instead of the first Monday in November, as it should have been; and because the writ of error was not returnable in accordance with the order allowing the same, nor according to the citation.

2. Errors affecting the merits are also assigned, as follows: (1.) That the President had by his proclamation of amnesty dismissed all proceedings against any person or his property, engaged, or in any manner implicated, in the rebellion. (2.) That, the original decree having been opened, the property of the respondent could not be sold at all, as there was no subsisting decree of condemnation. (3.) That the sale to the purchaser was null, because it was not made on the day specified in the writ of venditioni exponas. (4.) That the Circuit Court had no authority to confirm the sale to the purchaser. (5.) That the special pardon as well as the amnesty proclamation entitled the respondent to a restoration of his property in case the sale by the marshal was null and void.

1. Evidently the alleged preliminary defect is one of form, and it is equally clear that the power to amend all process returnable to the Circuit Court is vested in that court as fully as it is in the Supreme Court; and the express provision is that the Supreme Court may allow an amendment of a writ of error when there is a mistake in the title of the writ or a seal to the writ is wanting, or when the writ is returnable on a day other than the day of the commencement of the term next ensuing; and, by the true construction of the provision upon the subject, the same power of amendment is vested in the Circuit and District Courts in all cases where the process is returnable in those respective courts. 17 Stat. 197. Hampton v. Rouse, 15 Wall. 686.

Grave doubts are also entertained whether the supposed error would avail the respondent, even if no such act of Congress had been passed, as it appears that the copy of the writ lodged with the clerk of the District Court was correct, and that the transcript of the record of the case was actually made out, returned, and filed in the Circuit Court, before the commencement of the term of the Circuit Court next ensuing. Such being the fact, the better opinion is that the supposed defect is now wholly immaterial.

Suppose, however, it is otherwise: still the court here is of the opinion that the decree of the Circuit Court ought not to be reversed for a defect of form in the process which is amendable by the express words of an act of Congress, unless it appears that the alleged defect may have injured the ...

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