Where the Marshal of the District of Wisconsin attached property
at the suit of creditors in New York, and then gave it up upon the
execution of a bond to himself for the use of those creditors, it
was within the jurisdiction of the District Court of the United
States for Wisconsin to entertain a suit by the marshal, suing upon
the bond for the New York creditors, against the claimants in
Wisconsin, although both parties resided in the same state.
The name of the marshal was merely formal; the real plaintiffs
were averred to be citizens of New York.
It was not a good exception upon the ground of variation between
the evidence and declaration that the latter stated the bond to
have been given to Hutchinson as marshal of the District of
Wisconsin, and the former said the State of Wisconsin. They mean
the same thing.
Judgment having been rendered for the plaintiffs in the
attachment by a court having jurisdiction over the subject, it was
too late to object to those proceedings in a suit upon the bond, in
which they were collaterally introduced.
The bond given to the marshal was in conformity with the
Page 55 U. S. 587
The objections that the declaration on the bond did not show the
jurisdiction of the court in the attachment suit; that the verdict
was entered for the amount due instead of the penalty of the bond,
and that the recovery was for a sum greater than was claimed by the
in the declaration, were not sufficient for a
This case was brought up, by writ of error, from the District
Court of the United States for the District of Wisconsin.
The facts are stated in the opinion of the Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The action was commenced on a bond given by the plaintiffs in
error to Champion J. Hutchinson, United States Marshal, for the
State of Wisconsin, and his successor in office, in the penal sum
of five thousand six hundred dollars, for the payment of any
judgment within sixty days after its rendition, in a suit which
William Hurlbut and others had commenced in the district court,
against Huff, by attachment, and in which a judgment was rendered
for the plaintiffs, for two thousand eight hundred and eighty-four
dollars and forty-eight cents, and costs.
To the declaration the defendants pleaded in abatement that at
the commencement of the suit, Huff, Bullen, and Hale, were citizens
of the State of Wisconsin, and that the said Champion J. Hutchinson
was also a citizen of the same state.
To this plea a demurrer was filed, and the district court
sustained the demurrer.
The declaration stated that Hutchinson, late marshal, sues for
the use of William W. Hurlbut, Joseph A. Sweetzer, Philip Van
Valkenburgh, and George S. Phillips, citizens of the State of New
York, plaintiffs. The bond was given to the marshal in pursuance of
the statute of Wisconsin, regulating proceedings against debtors by
attachment, and the name of Hutchinson was merely formal, as he had
no interest in the suit. The real plaintiffs were those named in
the declaration, for whose use the suit was brought, and who are
averred to be citizens of New York.
The district court did not err in sustaining the demurrer. In
McNutt v. Bland &
2 How. 10, this Court held, in such a
case, the circuit court had jurisdiction.
After the demurrer was sustained, the defendants filed a plea of
On the trial, a bill of exceptions was taken to the rulings of
the court, which will now be considered.
Page 55 U. S. 588
The first exception was to the introduction of the bond as
evidence, because it varied from the declaration. The alleged
variance consisted in this: the declaration states the bond to have
been given to Hutchinson, as Marshal of the District of Wisconsin,
and in the bond he is described as the Marshal for the State of
Wisconsin. As the State of Wisconsin is the same in fact and in
law, as the District of Wisconsin, there was no variance.
Objection was made to the introduction of the writ of attachment
in evidence, on the same ground of variance as above stated to the
bond. There was no necessity of introducing this evidence, as the
condition of the bond referred to the judgment to be obtained, but
the court did not err in admitting it.
Other objections were made to the affidavit on which the
attachment was issued, to the return of the writ &c. These
objections were unsustainable. The court had jurisdiction of the
writ by attachment, and the judgment obtained in that case was
collateral to a suit on the bond. Objections, therefore, could not
be made to the proceedings in attachment, however erroneous they
In the case of Voorhees v. Bank of the United
10 Pet. 449, this Court said,
"So long as this judgment remains in force, it is in itself
evidence of the right of the plaintiff to the thing adjudged, and
gives him a right to process to execute the judgment. The errors of
the court, however apparent, can be examined only by an appellate
That was a procedure by attachment, and there were many errors
on the face of the record, which would have required an appellate
court to reverse the judgment, but they could not be considered
when the record of the judgment was introduced collaterally.
It was objected that the bond did not pursue the statute. 1.
That it should have been in double the amount of the goods
attached. 2. That the bond described in the declaration is in the
penalty of $5,600, to pay whatever judgment should be obtained. The
13th section of the statute, which regulates the giving of the
bond, provides that
"It may be in a penalty of double the amount specified in the
affidavit, annexed to the writ, as due to the plaintiff,
conditioned for the payment of any judgment which may be recovered
by the plaintiff in the suit commenced by such attachment, within
sixty days after such judgment shall be rendered."
The bond is within the statute.
The bond being given in the name of Hutchinson, as marshal, and
his successor in office, the suit is well brought in the name of
Hutchinson, though he has been succeeded in office by another. The
name of the obligee being used as matter of form, the
Page 55 U. S. 589
action may be brought in the name of the late marshal or his
Several grounds were taken in arrest of judgment.
1. Because the declaration on the bond, does not show that the
district court had jurisdiction in the attachment suit. Such
showing was unnecessary, as that court had general jurisdiction of
2. Because the verdict is informal, in being entered for the
amount due, when it should have been for the penalty of the bond.
This is a mere informality, and no ground for arresting the
3. Because the recovery is for a sum greater than is claimed by
the ad damnum
in the declaration. The action was debt, and
the damages laid were only required to cover the interest.
There was no error in the district court in overruling the
motion in arrest of judgment.
The judgment of the district court is
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Wisconsin, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged, by this Court that the judgment
of the said district court in this case be and the same is hereby
affirmed with costs and interest until the same is paid at the same
rate per annum that similar judgments bear in the courts of the
State of Wisconsin.