Gwin v. Breedlove
43 U.S. 29 (1844)

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U.S. Supreme Court

Gwin v. Breedlove, 43 U.S. 2 How. 29 29 (1844)

Gwin v. Breedlove

43 U.S. (2 How.) 29

Syllabus

A statute of the State of Mississippi, passed on 15 February, 1828, provided that if a sheriff should fail to pay over to a plaintiff money collected by execution, the amount collected, with 25 percent damages and 8 percent interest, might be recovered against such sheriff and his sureties, by motion before the court to which such execution was returnable.

A marshal and his sureties cannot be proceeded against jointly in this summary way, but they must be sued as directed by the act of Congress.

But the marshal himself was always liable to an attachment under which he could be compelled to bring the money into court, and by the Process Act of Congress of May, 1828, was also liable, in Mississippi, to have a judgment entered against himself by motion.

This motion is not a new suit, but an incident of the prior one, and hence residence of the parties in different states need not be averred in order to give jurisdiction to the court.

Such parts only of the laws of a state as are applicable to the courts of the United States are adopted by the Process Act of Congress; a penalty is not adopted, and the 25 percent damages cannot be enforced.

A marshal who receives bank notes in satisfaction of an execution when the return has not been set aside at the instance of the plaintiff or amended by the marshal himself must account to the plaintiff in gold or silver; the Constitution of the United States recognizing only gold and silver as a legal tender.

At some period prior to 13 February, 1839, James W. Breedlove, the defendant in error, had recovered a judgment in the Circuit Court of the United States for the Southern District of Mississippi against certain persons there for the sum of $12,976, with interest at the rate of 8 percent per annum, from 24 May, 1838, until paid, and on the said 13 February an execution was issued upon the judgment and placed in the hands of Gwin, the marshal. The sum of $5,000 was collected in unexceptionable

Page 43 U. S. 30

money, and paid over to plaintiff; the balance was received in notes of the Commercial Bank of Vicksburg and Planters' Bank of Mississippi, which the plaintiff refused to receive.

At the November term, 1839, of the circuit court of the United States, Breedlove moved for a judgment against Gwin, the marshal, for the sum of $7,976, being the balance due to the plaintiff on the execution. This motion was made under a statute passed by the Legislature of Mississippi on 15 February, 1828, which had been adopted in the practice of the circuit court by a rule of that court. The statute provided (Howard and Hutchinson 296) that if the sheriff should fail to pay, on demand by the plaintiff, money collected by execution, such sheriff and his sureties should be liable to pay to the plaintiff the whole amount of money so collected, together with 25 percent damages thereon, with interest at the rate of 8 percent per annum, to be recovered by motion before the court to which such execution is made returnable. The statute further provided for a jury, if the sheriff should deny that the money was collected by him. In case the sheriff failed to return as execution on the return day thereof (Howard and Hutchinson 298), the plaintiff was allowed to recover judgment against the sheriff and his sureties, with 5 percent damages, by motion before the court. It was also declared to be a misdemeanor for the sheriff to refuse to pay over money which he had collected, and punishable on conviction, by removal from office. Howard and Hutchinson 299.

The reasons filed in support of the motion were that the marshal had made the money and failed or refused to pay it over to the plaintiff.

Gwin demurred to the motion, but the demurrer being overruled, he filed four pleas. In the first two, he denied having received money. In the last two, he alleged that he had collected and received notes of the Planters' Bank of the State of Mississippi, and of the Commercial and Rail Road Bank of Vicksburg, due and payable on demand, when said banks were paying gold and silver on all their notes payable on demand; which notes, so collected and received, were collected and received without any instructions from the plaintiff or his attorney that gold or silver would be required, and at a time when the banknotes received were the current circulating medium, and the same were tendered to the attorney of the plaintiff before the suspension of specie payments by any or either of said banks -- all of which said banknotes said defendant had always been ready and

Page 43 U. S. 31

willing, and was then ready and willing, to pay over to the plaintiff or his attorney.

The plaintiff joined issue upon the first two pleas and replied specially to the last two that the defendant was, previous to the reception of the notes, instructed that gold or silver would be required of him. Issue was joined upon the last two replications.

Evidence was offered at the trial that the attorney of the plaintiff, Breedlove, told the marshal frequently before the money was collected that specie would be required; that he had demanded the money of the marshal, who refused to pay him; that the marshal never tendered him any banknotes, and that the notes of those banks, before their suspension, were received in the community everywhere as specie, and by the sheriffs and officers in collection of executions.

The execution was issued on 13 February, and the banks suspended specie payments on 15 or 22 March, 1839.

The counsel for the defendant prayed the court to instruct the jury as follows:

1. That if the jury believe from the evidence that bills of exchange and banknotes were received by the marshal, and not gold or silver, then the jury will find the issues on the first and second pleas in favor of the defendant.

2. If the jury believe that the instructions given to the marshal were intended to authorize the marshal to collect gold or silver or its equivalent, and he collected banknotes which were equivalent to gold or silver, then they should find the issue for the defendant.

3. And that if they find that the marshal received banknotes or bills of exchange and not money is specie, which the plaintiff refused to receive as money, then they must find the issues for the defendant, as the issue is whether he received and collected money or not.

The first and third of which charges the court refused to give, but gave the second charge to the jury, to which refusal to give the first and third charges the defendant excepted.

The jury found for the plaintiff.

Page 43 U. S. 34

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