INSLEY

v.

UNITED STATES

Mr. Justice Brown,

after stating the case, delivered the opinion of the court..

The quéstion in this case is whether the proceedings by scire facias, taken by the United States to enforce the forfeiture of McEhoy’s recognizance, operated to divest his title to the lands in dispute.

(1) The argument of the appellants in this connection is that, under Rev. Stat. § 1014, authorizing commissioners* “ to take bail in any State where he ” (the accused) “ may be found, and agreeably to the usual mode of process against offenders in such State,” proceedings for the enforcement of bail bonds should conform to the practice in the State where the bond is sued; and that, as the statutes of Kansas do not authorize' proceedings by scire facias in such cases, but require a-formal action, termed in the Code of Kansas a “civil action” against the bail, this practice should also be pursued in the Federal courts; and hence that the judgment of the District Court of Kansas in this case rendered upon a writ of seire facias was illegal and void.

But we do not find it necessary to determine whether a scire facias was a proper remedy or not. It is a sufficient answer . to the appellants’ contention that the court had jurisdiction of the subject-matter under Rev. Stat. § 563, which confers upon District Courts jurisdiction of all suits for penalties and forfeitures incurred under any law of the United States; and § 716, conferring upon District Courts power to issue writs of scire facias1, and also that the court had jurisdiction of the ' person of the defendant, who was not only served with the writ, but appeared and moved to quash the same, apparently for the same reasons which are now urged for holding the proceedings to be a nullity. If McElroy had desired to contest his liability further he should have prosecuted his writ of error from the Circuit Court, which he appears to have sued out, but' subsequently dismissed. The error, if any were committed, did not go to the jurisdiction of the court, but only to the particular remedy pursued, and the action of that court in respect thereto was binding in a collateral proceeding. Hendrick v. Whittemore, 105 Mass. 23.

Nice distinctions were formerly drawn between actions of trespass and casé, but it was never supposed that an error in that particular affected the jurisdiction of the court, or could be drawn in question collaterally. Eyen an objection that an action should have been brought at law instead of in equity may be waived by failure to take advantage of it at the proper time. Wylie v. Coxe, 15 How. 415, 420; Reynes, v. Dumont, 130 U. S. 354, 395 ; Clark v. Flint, 22 Pick. 231; Ludlow v. Simond, 2 Caines’ Cas. 1, 40, 56.

. (2) The objection that McElroy, the judgment debtor, died in August, 1881, after the deed was ordered, but before it' was actually executed by .the sheriff, and that thereby the judgment became dormant, is equally untenable. It assumes that the general rule that the death of a party to a suit, either pending the suit or after judgment-and before execution abates the suit, applies to a case where land has been sold upon execution and no deed delivered.- It is true that this court held in the case of Ransom v. Williams, 2 Wall. 313, that when a defendant died after judgment, and execution was subsequently issued Avithout the notice required by the statute having been given to the representatives of the defendant, or the judgment revived by scire facias, the execution Avas a nullity, and all proceedings under it wer.e void. But even in that case a doubt Avas expressed whether the execution would not be good, if it Avere -tested before the death occurred. The Mav in such cases, 'h.oAvever, acts upon the theory that the defbndant is interested- ' in the case, and, therefore, upon his death his personal representatives should be called in. In this case, hoAvever, the suit Avas not' only not pending, but the judgment had been satisfied by the sale of the land, and there Avere no proceedings existing in Avhich McElroy’s estate could be said to be interested. The sale was confirmed and deed ordered October 16, 1871, while the death of McElroy took place ten years afterwards. After the property had been sold upon execution, and the United States hald bid it in, and the sale was confirmed and the deed ordered, the defendant in the execution received credit for the amount of the sale, Avhich amount, $2467, can-celled the judgment, and left it fully satisfied. There Avas no judgment to become dormant. In short, the whole proceedings 'between McElroy and the United States had ceased to exist. The United States stood only in the attitude of a purchaser of the land, Avith poAver to call upon the sheriff for a deed. Had the land been bid in by a third party and a deed ordered, it would scarcely be claimed that as to him the suit would have been abated, and yet as a matter of laAv the position of the United States was precisely the same as would have been that-of a third person purchasing the property.

There was no error in the conclusion of the court below, and its decree must, therefore, be' Affirmed.