Page:United States Reports, Volume 257.djvu/86

Rh 1. . A personal execution is denied only when the certificate is given. It is true that in this instance the certificate has been made, but the intended scope of the action must be judged by its possibilities under the statutes that deal with it. The language of the most material enactment, Rev. Stats., § 989, gives no countenance to the plaintiff's argument. It enacts that no execution shall issue against the collector but that the amount of the judgment shall "be provided for and paid out of the proper appropriation from the Treasury," when and only when the Court certifies to either of the facts certified here, and "when a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty." A recovery for acts done by the defendant is the only one contemplated by the words "by him." The same is true of Rev. Stats., § 771, requiring District Attorneys to defend such suits.

No different conclusion results from the Act of February 8, 1899, c. 121, 30 Stat. 822. That is a general provision that a suit by or against an "officer of the United States in his official capacity" should not abate by reason of his death, or the expiration of his term of office, &c., but that the Court upon motion within twelve months showing the necessity for the survival of the suit to obtain a settlement of the question involved, may allow the same to be maintained by or against his successor in office. Whether this would apply to a suit of the present kind is at least doubtful. Roberta v. Lowe, 236 Fed. 6M, 605. In Patton v. Brady, 184 U. S. 608, a suit against a collector begun after the passage of this statute, it was held that it could be revived against his executrix, which shows again that the action is personal; as also does the fact that the collector may be held liable for interest. Erskine v. Van