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Griffin v. Thompson. 2 H. With his claim, thus solemnly ascertained of record, we are aware of no authority, from any source, which can compel him to commute it, or to receive in satisfaction thereof any other thing which he shall not voluntarily elect. But least of all should such an authority be recognized in a quarter more fruitful than any other of abuses in its exercise ; for instance, from the will either of the debtor, or the officer whose position would enable him, in some degree, to practise on both creditor and debtor. To permit either the debtor or the officer to impose upon the creditor the receipt of depreciated paper in payment, would be to permit not merely a repeal of the judgment, but a violation, a virtual abrogation indeed, of the contract on which it was founded; for none can fail to perceive the thousand fraudulent devices for profit or favor which the toleration of such a practice would naturally call into action to defeat the rights of creditors. The courts of justice might thus be made to subserve only the purposes of dishonesty, and be transformed into engines of monstrous wrong. It has been argued in support of this motion, that banknotes constitute good and lawful payment if received; that as the law recognizes their circulation, debtors may lawfully tender them in payment, and creditors may lawfully receive them, though not legally bound to do so. From these postulates it is then attempted to draw the following conclusions. 1. That the marshal is the plaintiff's agent, who, by the execution, may receive the plaintiff's debt. 2. That he who may lawfully receive payment, may have a lawful tender of payment made to him. 3. That if a tender or payment of bank-notes to the principal, not by him objected to, is a good tender or payment, the like tender or payment to the agent is equally good. This argument, to say the least of it, is wholly untenable. 'Tis undoubtably true, that the creditor may receive either bank-notes or blank paper in satisfaction of his debt, for the reason that his power over that debt is supreme, and he may release it without payment of any kind, if he think proper. But the fallacy of the argument * here [ * 257 ) consists in totally misconceiving the situation and functions of the marshal. He is properly the officer of the law rather than the agent of the parties, and is bound to fulfil the behests of the law; and this too without special instruction or admonition from any per

If then, when commanded to levy a sum of money, he make a return that he has not done this, but has, of his own mere will, substituted for money depreciated bank-notes, his return is an admission, on oath, that he has both disobeyed his orders and transcended his powers, for legally he has no powers save those he derives from the precept he is ordered to obey. Can it be doubted that upon application from those whose interests are involved in the performance of

son.

Buckhannan v. Tinnin. 2 H.

his duties by the marshal, it is the right and the duty of the court in such a case to correct the irregularities of its officer, and to compel him to perform his duty ? There is inherent in every court, a power to supervise the conduct of its officers, and the execution of its judg. ments and process. Without this power, courts would be wholly impotent and useless. The returns of the marshal in this case, upon the final process in his hands, showing the receipt by him of depreciated bank-paper in satisfaction of that process which ordered him to collect money, are held to be departures from the performance of his duty as plainly enjoined by the process itself, are deemed therefore illegal and void, and ought, upon the application of the party injured thereby, to have been set aside and annulled by the court. In conformity with the principles herein sanctioned, we therefore order it to be certified to the judges of the circuit court for the southern district of Mississippi, that satisfaction should not be entered on the execution of fieri facias which was sued out in this case on the 4th of June, 1840, in favor of the said Robert Thompson v. the said Thomas Griffin and Hugh Ervin, for the sum of $1,740.02, with interest and costs; and further, that the execution of fi. fa., which was sued out against the said Thomas Griffin and Hugh Ervin on the sixth day of November, 1841, should not be quashed; and that the motion of the plaintiff in the circuit court should be overruled.

2 H. 258; 3 H. 707.

BUCKHANNAN, HAGAN, AND Co., for the Use of GEORGE BUCKHANNAN,

Plaintiffs, v. William TINNIN, Ralpu CAMPBELL, and John G. ANDREWS, Defendants.

2 H. 258. If the creditor assents to the receipt by the marshal of depreciated bank-notes in satisfaction

of an exccution, he is bound thereby, and his assent may be presumed from lapse of time and other circumstances.

This case was like the next preceding in all its circumstances, save the differences pointed out in the opinion of the court.

Duncan and Holt, for the creditors.

No counsel contrà.

( * 261 ] *DANIEL, J., delivered the opinion of the court.

The principles ruled in the case of Griffin v. Thompson, 2 How. 244, as those which define the duties and should govern the conduct of the marshal in levying executions committed to his hands,

Buckhannan v. Tinnin. 2 H.

have been here again considered and approved. They would be decisive also of the case now under consideration, but for two points of difference between this and the case of Griffin v. Thompson. These two points arise, 1st, upon the time intervening between the return of the marshal and the plaintiff's motion, as tending to show an * acquiescence by the plaintiff; and, secondly, upon the [ * 262 ] additional evidence in this case amounting to proof of approbation or sanction by the plaintiff, express or implied of the conduct of the marshal. In Griffin v. Thompson, application was made to the court at the earliest practicable period to set aside the marshal's return, and there was throughout no fact or circumstance tending to show a recognition, by the party, or a moment's acquiescence by him, in the irregularity complained of. In the present case, the return of the marshal showing the receipt by him of the depreciated bank-notes, bears date on the 17th February, 1840; the motion to quash was made in May, 1842. Thus an interval of more than two years was permitted to elapse between the return and the motion; a period during which the party must be presumed to have been cognizant of the return, a public and official proceeding to be found amongst the files and records of the court to which access might at all times have been had. If this fact stood alone, unassociated with, and unexplained by any other, it would of itself imply at least, on the part of the plaintiff, laches and negligence in the prosecution of his interests, if not an assent by him to the acts of the officer. This fact of time, however, is by no means solitary or isolated in the evidence in this

The language of the return certainly imports no objection by the plaintiff or by any other to the receipt of the $1,300, or to the medium in which they were collected ; so far from this, when taken altogether, that language strongly implies, if it does not directly declare, that the plaintiff, or whosoever he was that took control of the matter, approved of the proceeding so far as it had gone, and objected only to a collection of the residue of the execution at that time. It should not be lost sight of either, in construing this language, that no exception to any one kind of medium, or preference for any other, is indicated in the inhibition as stated; it is a simple direction to proceed no further. It cannot be objected to the return in question, that it is the act or declaration of the officer whose conduct in making it is impeached. Although the act of that officer, it is a sworn return, and must stand until falsified. It is introduced by the plaintiff himself in support of his motion; is indeed the only evidence he has adduced to sustain it; he relies on this return, and in so doing, must take it entire ; he cannot be permitted to garble it. The return must be received as stating the truth. It must be received in all its parts;

cause.

Matheson's Administrators v. Grant's Administrator. 2 H.

and if so, it comes (especially when viewed in connection with the

interval between the dates of that return and of the motion [ * 263 ) in this case,) on the part of the plaintiff, an acquiescence, if

not a direct sanction, which at this day, this court is unwilling to disturb. Great wrong might, by so late an interference, be visited upon the officer, who may have been reposing upon the conduct of this plaintiff; and the danger of a result like this is enhanced by the total absence of any thing like proof to show that the plaintiff ever refused to receive the amount collected by the marshal, and may not have actually received and applied it to his own use, or at what rate of value if so received. This court is of the opinion upon the case certified to them, that the return of the marshal of the 17th of Febru. ary, 1840, should not, under the facts disclosed in this case, be quashed.

John Murphy and John DARRINGTON, Administrators of WILLIAM

Matheson, deceased, Plaintiffs in Error, v. Angus STEWART, Administrator of ALEXANDER GRANT.

2 H. 263.

in 263 3 37 69 39 69 278 4h 345

4 wa 22 35 126

At the term when a verdict was rendered, a motion was made in arrest of judgment, for a

misjoinder of counts, and the judgment was ordered to be arrested, but no formal judgment, that the plaintiff take nothing by his writ non obstante veredicto, was entered. At the second term following, the court, on motion, set aside the order arresting the judgment, allowed a nolle prosequi to be entered on one count to cure the misjoinder, and ordered the verdict to be entered on the other count, to which it appeared the evidence was applicable, and en

tered a judgment nunc pro tunc for the plaintiff. Held, 1. That this amendment of the verdict and of the record was within the power of the

court under the statute of jeofails, (the 32d section of the Judiciary Act of 1789, 1 Stats. at Large, 91,) and being an exercise of the discretion of the court below, it could not be

revised by a writ of error. There is no fixed time within which verdicts and judgments may be amended; even after

error brought, if within a reasonable time, such amendments may be allowed, and it is a

salutary practice thus to cure merely formal defects. Whether in Alabama a profert of letters of administration is necessary, quære; but if so, the

want of it is cured by a verdict.
A note, payable to G. and G., primâ facie imports that there is a partnership.
An administrator, who is indorsee of a note, may elect to sue thereon as administrator, or in
his own right.
The case is stated in the opinion of the court.
Ogden, for the plaintiffs.

Nelson, (attorney-general,) contrà.
[ * 279 ] * Story, J., delivered the opinion of the court.

This is the case of a writ of error to the circuit court of the United States for the southern district of Alabama.

The original action was assumpsit brought by Stewart (the defend

Matheson's Administrators v. Grant's Administrator. 2 H.

ant in error) as administrator of Alexander Grant, who was the surviving partner of the firm of Grant and M'Guffie, against Murphy and Darrington as administrators of Matheson, upon a certain note and due-bill made and signed by Matheson in his lifetime. The note was as follows : “ Charleston, 30th Sept., 1818. Four months after date I promise to pay Grant and M'Guffie, or order, $3,428.18, value received." The due-bill was as follows: “ Charleston, 25th February, 1820. Due to Grant and M'Guffie, or bearer, on demand, $344.66, with interest from date." The note was indorsed in blank, “ Grant and M'Guffie."

The declaration contained two counts. The first count is by Stewart as administrator upon both instruments, and upon promises made by Matheson in his lifetime, and by his administrators since his decease, to pay him (Stewart) as administrator. The second is upon both instruments, stating the note to have been indorsed by Grant and M'Guffie to him, (Stewart,) and the due-bill to have been * transferred to him by delivery. So that in legal [ * 280 ] effect he claimed in the first count as administrator, and in the second in his own personal right. At the trial (for it is unnecessary to state the pleadings) the jury found a general verdict for the plaintiff, upon both counts, at the November term of the court, 1840. And at the same term a motion was made in arrest of judgment for the misjoinder of the counts, which motion was sustained, and thereupon it was ordered by the court that the judgment be arrested. At the November term of the court, 1841, a motion was made to set aside the order in arrest of judgment, and for leave to amend the verdict so that the same might be entered upon the first count, and a nolle prosequi entered upon the other count. In support of this motion, an affidavit was made by the plaintiff's counsel, that the only evidence offered at the trial by the plaintiff was the deposition of Chapman Levy, Jacob Axon, and M'Kenzie, and the note and due-bill which were on the files of the court; and that no evidence was offered by the defendants; and that the cause went to the jury upon the above depositions of the plaintiff alone. Upon this evidence after notice to and hearing the counsel for the defendants, who offered no evidence in opposition to the motion, the court made an order, vacating the order in arrest of judgment, and allowing the verdict to be amended by entering the same on the first count, and that judg. ment be entered upon that count nunc pro tunc for the plaintiff. Judgment was accordingly entered thereon; and from that judgment the present writ of error has been brought.

The main question which has been argued is, whether the court had authority to make the amendment at the time and under the

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