Gwin v. Breedlove. 2 H. sippi, due and payable at said banks, and which were paying specie on their notes on demand, that is, on the 12th day of March, 1839, which notes 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 bank-notes were the current circulating medium; and that the same, on the day aforesaid, were tendered to the attorney of the plaintiff before the suspension of specie payments by the banks; all of which bank-notes he has always been ready, and is yet ready and willing to pay over to the plaintiff. The 4th plea is the same in substance. On the first two pleas issues were joined to the country: To the other two the plaintiff replied: That previous to the reception of the bank-notes, the defendant was instructed that gold and silver would be required upon the execution; and issues were tendered * to the country, which were joined on the single point, [ 38 ] whether the marshal had been instructed that gold or silver would be required. Two instructions were asked on behalf of the marshal, and refused -First, "If the jury believe from the evidence that bills of exchange and bank-notes were received by the marshal, and not gold and silver, then the jury will find the issues on the first and second pleas in favor of the defendant." 3d. "And that if they find that the marshal received bank-notes or bills of exchange, and not money in 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 2d instruction asked was given, and need not be noticed. The return of the marshal was, that he had received on the execution bank-notes due on demand, and payable in specie, on the two banks named in the return, amounting to $7,000, the subject of the present motion. No question is, or can be raised, on the last two issues; they were found against the defendant on the proof that he had been instructed that nothing but gold or silver would be received in satisfaction. The merits of the case, therefore, turn on the two instructions refused; they are referable to the facts giving rise to the instructions; the facts briefly are, that the marshal was instructed to collect specie on the execution; he failed to do so, and took bank-notes from the debtor, to the amount of $7,000, in lieu of specie. A few days after the notes were received, one of the banks at which a part of them were payable, suspended specie payments, and its notes thereby became Gwin v. Breedlove. 2 H. depreciated in value. The instructions raise the question who shall bear the loss. If the officer's return is treated as a nullity, then it will fall on Marsh and others, defendants to the execution; if the mar shal's offer to deliver the notes to Breedlove's attorney, and his plea of tender had been good, then the execution creditor must have sustained the loss; but failing in these grounds of defence, the officer must bear it himself. By the constitution of the United States, (section 10,) gold or silver coin, made current by law, can only be tendered in payment of debts; nevertheless, if the debtor pays bank-notes, which are received by the creditor in discharge of the contract, the payment is just as valid as if gold or silver had been paid. Had Marsh paid [ 39 ] his creditor, Breedlove, in the manner he did the marshal, then there can be no doubt Breedlove could not have treated the payment as a nullity, and on this assumption have issued an execution on his judgment, and enforced payment again in specie. * By the writ of execution, the marshal was commanded to collect so many dollars; this meant gold or silver, of course. And the court of errors and appeals of Mississippi, in the case of Tutt v. Fulgham, 5 How. Miss. 621, ordered the return of a sheriff, like the one before us, to be struck out, on motion of the plaintiff in the suit. That court says: "The return of the sheriff, that he took the Union bank-notes, is not a legal return; and the plaintiff is not bound by it, unless the plaintiff had agreed to receive that kind of money or notes in payment, and no such agreement appears." In the case before us, no motion was made to strike out the return on part of the plaintiff, Breedlove, nor did the marshal ask leave to alter his return, stating he had not made the money; the three parties interested treated the payment as a valid discharge of the judgment against Marsh, and we think, for the purposes of this motion, at least, it must be so deemed. Gwin, the marshal, did receive banknotes in payment, and intended they should be taken in discharge of the execution; the record throughout shows he did so receive them, and that they were received as money; still, he could only pay into court gold or silver, if required by the execution creditor to do so, and therefore he ran the risk of converting the notes into specie when he took them; having incurred the risk, the marshal must bear the loss of depreciation. We apprehend this view of an officer's responsibility who collects bank-notes, is in conformity to the general practice of the courts and collecting officers throughout the country. This court, therefore, reverses so much of the judgment of the circuit court as adjudged the plaintiff in error, Gwin, to pay the twentyfive per cent. damages on the amount recovered against him; and affirms the residue of said judgment. DANIEL, J., dissented. Gwin v. Breedlove. 2 H. I am unable to concur with the majority of the court in their opinion just announced. 'Tis my opinion that the judgment of the circuit court should have been wholly reversed. Congress, by express enactment, have defined the duties and responsibilities of the marshals, and prescribed the modes in which * they shall be enforced. These express regulations, designed [ 40 ] for the government of the peculiar officers of the federal courts, cannot, I think, be varied or controlled by rules established by the States for the conduct of their respective ministerial agents, but must be of paramount authority. The laws of Mississippi, therefore, denouncing penalties against the misconduct of sheriffs, and directing the manner of enforcing them, cannot govern this case. Should it be conceded, however, that the laws of Mississippi concerning sheriffs could have effect in this motion against the marshal, it seems obvious to my mind that the appropriate remedy under the state law for an act like that complained of, has not, in this case, been adopted. The alleged delinquency in the marshal made the foundation of this motion a delinquency identically the same for which a like proceeding is authorized against a sheriff, is the refusal to pay over money actually made and in his hands, and collected in satisfaction of an execution. For such a refusal a peculiar penalty, the very same sought and adjudged by the court in this instance, is provided. By the return of the marshal, relied on in proof by the plaintiff, it is conclusively shown that the money which the officer was commanded to make had never been received, but that he had received, in part, that which was not money, and which had never been converted into money, and which the plaintiff, in the execution, would never have received in lieu of money. Nay, the oral evidence introduced by the plaintiff was brought in to prove that the marshal, in opposition to the plaintiff's positive instructions, had received that which was not money, excluding, upon this proof as well as upon the return, every inference that money had been actually received in satisfaction of the process in his hands. A refusal or an omission to levy or to return an execution, the statutes of Mississippi designate as different and distinct offences, and the conduct of the marshal, as shown in the proofs, approaches more nearly to either of these, than it does to the misfeasance alleged in the notice, and for which the court has awarded a penalty against him, although the fact charged is positively disproved by all the testimony, as it is also by the plaintiff's replications to the defendant's third and fourth pleas. But whether or not the conduct of the marshal can in literal strictness be denominated a failure or refusal to Gwin v. Breedlove. 2 H. levy or to return an execution, it is surely not a failure or refusal to pay over money actually levied, and, therefore, the proceed[*41 ]ing, under color of the statute of Mississippi, is not * the proceeding appropriate to the act of the officer, however that act may be characterized. This is, too, a statutory proceeding, and should strictly conform to the power which authorizes it. It cannot be extended either to modes or objects not clearly embraced within the terms of that authority. It cannot, therefore, in any event, warrant the judgment now proposed, as that is clearly for a penalty wholly different from the one imposed by the law of Mississippi, for an offence such as is assumed by the court to have been committed in this instance. Surely, the law of Mississippi either should or should not govern this case. Again, I do not think that the jurisdiction of the circuit court is made out as between the parties to the judgment. The motion on which it is founded is neither process nor a mode of proceeding in the suit between Breedlove and Marsh and Company, nor can it be deemed an execution or process or proceeding upon or regularly incident to the judgment between those parties. It is a distinct and substantive and original proceeding against a third person, no party to the controversy. A right of action is claimed against this third person for his own acts or delinquencies, independently of the contract or controversy between the parties to the judgment. In his character of officer of the court, he would, doubtless, be amenable to the authority it possesses to supervise the conduct of its own officer, and to secure the enforcement of its own judgments; an attachment would, therefore, lie against him, to effect these ends of justice. He would, also, be liable upon his official bond as marshal, because the judicial act confers a right of action thereon, without restriction as to citizenship, on all persons who may be injured by a breach of the condition of that bond. But if a further or different recourse is sought against the marshal, one which may be supposed to arise neither from the inherent power of the court over its peculiar officer, or its judgments, then it is presumed that those who seek such recourse must show their right as arising out of their character to sue in the federal courts; they must show themselves, by regular averment, to be citizens of a State other than that of him whom they seek to implead. The present case closely resembles that of Course et al. v. Stead et ux. 4 Dall. 22, in which it was ruled that the want of a proper description of parties in a supplemental suit, was not cured by a reference to the original suit. The judgment should, I think, be reversed. 6 H. 7. Shriver's Lessee v. Lynn. 2 H. DAVID SHRIVER, JUNIOR'S, LESSEE, V. MARY LYNN, WILLIAM LYNN, 2 H. 43. A devise to E. M. during his natural life, and in case he should have heirs lawfully begotten of him, then to him, his heirs and assigns; but if he should die without such an heir, the land to be sold, &c., gives to E. M. only an estate for life, to be enlarged into a fee on the happening of the contingency, according to the laws of Maryland. A trustee, appointed by the chancellor of Maryland to sell one parcel of land, sold that, and subsequently sold another parcel, which was not embraced in the decree, and reported the latter sale to the court, and it was confirmed; Held, that there was no authority to make the sale, and that the order of confirmation did not render it valid. ERROR to the circuit court of the United States for the District of Maryland, in an action of ejectment brought in that court by the plaintiff in error. The material facts appear in the opinion of the court. Johnson, for the plaintiffs. Schley, contrà. M'LEAN J., delivered the opinion of the court. [ *53 ] This case comes up on a writ of error to the circuit court for the district of Maryland. An action of ejectment was commenced by the lessor of the plaintiff, to recover the possession of 100 acres of land, part of a tract called George's Adventure, situated near the town of Cumberland. In the circuit court, a verdict was found for the plaintiff, subject to the opinion of the court upon a cause stated. A judgment was entered for the defendant; and the cause is now before us, on the facts agreed. By his last will and testament, Zachariah Magruder, a citizen of Maryland, among other things, devised to his wife Sarah, "the full use of his dwelling-plantation, containing in the whole, after a certain legacy was deducted, about 356 acres, called George's Adventure, in Washington county; to be by her peaceably and quietly possessed and enjoyed without molestation, during her natural life." The will also contained the following: "I give and bequeathe unto my brother, Elias Magruder, during his natural life, 100 acres of 27 8 5 8:5 2w36 18wa 4 21 2 10f7 |