OpenJurist

44 US 717 William McFarland v. William M Gwin

44 U.S. 717

3 How. 717

11 L.Ed. 799

WILLIAM H. McFARLAND
v.
WILLIAM M. GWIN, (LATE MARSHAL.)

January Term, 1845

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Mississippi.

McFarland had recovered a judgment against one Passmore for the sum of $9,763.10, and on the 6th of July, 1839, issued a fieri facias.

On the 1st of November, 1839, the execution was levied upon sundry pieces of property by the marshal.

On the 20th of December, 1839, a venditioni exponas was issued, to which the marshal made the following return:

'The within named property was sold on the 27th day of January, 1840, and I received in payment therefor, on that day, the sum of nine thousand dollars in the post notes of the Mississippi Union Bank, which are herewith returned. Received, also, on the same day, the balance of the execution from the defendants, in the same kind of money, which is likewise herewith returned.

'WM. M. GWIN, Marshal.

Per J. F. COOK, Deputy.'

Attorney's Receipt.

'May 22d, 1840. Received of Wm. M. Gwin, marshal, the sum of five hundred and fourteen 15/100 dollars, being the amount of my commissions, I having refused to receive the balance belonging to the plaintiff, as the same was tendered me by Mr. Gwin in Union Bank of Mississippi post notes, in which kind of money he says and returns that it was collected.

'WM. R. T. CHAPLAIN, Pl'tff's Att'y.'

At November term, 1841, McFarland, by his counsel, moved the court for a judgment against Gwin for the amount due on the original judgment, with interest at the rate of eight per cent. from the 14th of May, 1839, to the 27th of January, 1840, and for interest upon the aggregate sum at the rate of thirty per cent. per annum, from the 22d of May, 1840, until paid.

The motion was submitted to the court upon the following agreed case, viz.:

(The writs and returns were stated, and then the agreement continued thus:)

'And it was proved that the money was demanded on the 22d day of May, 1840; also, that at that date the Union post notes were at forty per cent. discount.

'The defendant proved, that on the demand he tendered the post notes of the Mississippi Union Bank, which were refused by the attorney of the plaintiff. He also proved, that from August, 1838, when the Mississippi Union Bank went into operation, until about the middle of February, 1840, the post notes of that bank constituted nearly the entire circulating medium of the state. That they had been treated as cash in all business transactions during that time. That they were habitually and ordinarily received by the sheriffs throughout the state in satisfaction of executions, and in payment of property sold under them. That the marshal had been accustomed, during all that time, to collect the post notes of said bank upon executions; and that the attorneys of the court, and plaintiffs in executions, had always, without objection, received such notes from the marshal as money. That on the 27th day of January, 1840, the day of sale, the post notes of said bank were worth five or six per cent. less than specie, and were worth more than they had previously been. That about the middle of February, 1840, they suddenly depreciated in value, and continued to decline until the 22d May, 1840.

'The above was all the evidence in the case.

H. S. EUSTIS,

W. YERGER.'

Upon this statement of facts, the court were of opinion that judgment should be entered for the defendant. To which opinion of the court, the plaintiff, by his counsel, excepted, and upon this exception the case came up.

Coxe, for the plaintiff in error.

Walker, for the defendant in error.

Mr. Justice McKINLEY delivered the opinion of the court.

1

McFarland recovered judgment against Ellis P. Passmore, for the sum of $9,763.10 in the Circuit Court of the United States, for the southern district of Mississippi; and on the 6th day of July, 1839, a fieri facias issued thereon, directed to the marshal of the southern district of Mississippi, commanding him, that of the goods and chattels, lands and tenements of the said Ellis P. Passmore, he should cause to be made the said sum of $9,763.10, upon which fieri facias the marshal returned, that he had levied of the goods and chattels, lands and tenements of the defendant sufficient to satisfy the fieri facias; but which property had not been sold for want of time.

2

And thereupon a venditioni exponas issued to the marshal, commanding him to expose to sale the goods and chattels, lands and tenements levied on, upon which he returned, that he had sold the property levied on, and received the full amount of the fieri facias, in the post notes of the Mississippi Union Bank. The attorney for the plaintiff received of the marshal $514.15, being the amount of the attorney's fees; for which he gave a receipt, but refused to receive any part of the notes for the plaintiff. At the November term, 1841, of the Circuit Court, the plaintiff moved the court for judgment against the marshal for the amount of the fieri facias and interest thereon. On the trial of the motion, it was proved by the plaintiff, that the money was demanded on the 22d day of May, 1840; and at that date the post notes of the Union Bank were selling at a discount of 40 per cent. Gwin, the defendant, proved that on the demand made, he had tendered the post notes of the Union Bank, which were refused by the attorney of the plaintiff; and that from August, 1838, when the Mississippi Union Bank went into operation, until about the middle of February, 1840, the post notes of that bank constituted nearly the entire circulating medium of the state; that they had been treated as cash in all business transactions during that time, and had been received by the marshal and the sheriffs of the state in payment of executions. And thereupon the court rendered judgment against the plaintiff, and for the defendant.

3

To reverse this judgment the plaintiff has prosecuted this writ of error.

4

This question is fully settled in the case of Griffin & Ervin v. Thompson, 2 How., 244. In that case this court held, that the marshal was not authorized by law to receive any thing in discharge of the execution, but the gold or silver coin of the United States. To this general proposition we give our full assent; but we do not mean to say there is no exception to this general rule. If the plaintiff were to authorize the marshal to take bank notes, of any description, in payment of the execution, we have no hesitation in saying, a payment by the defendant to the marshal in such bank notes would be a satisfaction of the judgment.

5

But as Gwin failed to prove any such authority from the plaintiff, he was clearly liable for the whole amount of the execution with legal interest thereon, except the amount paid to the plaintiff's attorney. It has been contended, however, in this case, that, at the time this motion was made, Gwin was not marshal, his time having expired, and another having been appointed in his stead. It is a well settled principle of law, that if an execution come to the hands of a sheriff to be executed, and his term of office expire before he executes it, he is bound nevertheless to complete the execution; and the same rule applies to a marshal. An execution is never completed until the money is made and paid over to the plaintiff, if it be practicable to make it.

6

All the remedies against the marshal, necessary to compel him to pay over the money he has made, survive his term of service, and remain in full force against him until the execution shall be completed. The judgment of the Circuit Court must, therefore, be reversed.