McFarland v. Gwin, 44 U.S. 717 (1845)

U.S. Supreme Court

McFarland v. Gwin, 44 U.S. 3 How. 717 717 (1845) McFarland v. Gwin

44 U.S. (3 How.) 717

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

A marshal is not authorized by law to receive anything, in discharge of an execution, but gold and silver, unless the plaintiff authorizes him to receive something else.

The case of Griffin v. Thompson, 2 How. 244, reviewed and confirmed.

A marshal, like a sheriff, is bound, after the expiration of his term of office, to complete an execution which has come to his hands during his term, and an execution is never completed until the money is made and paid over to the plaintiff, if it is practicable to make it.

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

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

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

"The within named property was sold on 27 January,

Page 44 U. S. 718

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, Plaintiff'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 percent from 14 May, 1839, to 27 January, 1840, and for interest upon the aggregate sum at the rate of thirty percent per annum, from 22 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 22 May, 1840; also, that at that date the Union post notes were at forty percent 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 27 January, 1840, the day of sale, the post notes of said bank were worth five or six percent less than specie, and were worth more than they had previously been. That about the middle of February,

Page 44 U. S. 719

1840, they suddenly depreciated in value, and continued to decline until 22 May, 1840."

"The above was all the evidence in the case."

"H. S. EUSTIS"

"W. YERGER"

Upon this statement of facts, the court was 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.

MR. JUSTICE McKINLEY delivered the opinion of the Court.

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 6 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.

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 22 May, 1840, and at that date the post notes of the Union Bank were selling at a discount of 40 percent 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

Page 44 U. S. 720

thereupon the court rendered judgment against the plaintiff, and for the defendant.

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

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 anything 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.

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 expires 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.

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.