# Gwin v. Breedlove (43 U.S. 29)/Opinion of the Court

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United States Supreme Court
43 U.S. 29
Gwin v. Breedlove
The writ of error in this case is prosecuted by the former marshal to reverse a judgment recovered against him by motion in the Circuit Court of the United States for the district of Mississippi. The proceeding in this form is founded on a law of that state governing sheriffs, as will be seen by the statement of the reporter.
The first objection raised on behalf of the plaintiff in error is, that it does not appear on the record, that Breedlove was a citizen of a different state from the defendant; and therefore it is insisted the court below had no jurisdiction as between the parties. As this does not appear, in an ordinary case jurisdiction would be wanting. On the other hand, it is contended that the motion against the ministerial officer of the court for not performing his duty, was an incident, and part of, the proceeding in the suit of Breedlove against Marsh and others, in which the execution issued; and that no question of jurisdiction can be raised.
The motion for a judgment being a proceeding according to the statute of Mississippi, it is also objected that Congress by the act of 1806 (ch. 31,) had provided a complete and exclusive remedy on marshal's bonds by suit; but if it was otherwise, still, the additional remedy furnished by the state law when substituted, must be treated as an independent suit, in like manner as an action on the marshal's bond, and the residence of the parties be such as to give the federal court jurisdiction.
These propositions are so intimately blended that it is most convenient to consider them together.
We think it true beyond doubt, that if the bond had been proceeded on against the marshal and his sureties, it could not have been done by motion, according to the state practice prescribed by the statute of Mississippi; but the proceeding must have been according to the act of Congress. Yet before the act of 1806 was passed, and ever since, the common law remedy by attachment has been the most usual to coerce the marshal to perform his various duties; and among others, to bring into court moneys collected on executions. So in the state courts, nothing is more common than to proceed by attachment against the sheriff, instead of resorting to a summary motion, for judgment against him by force of a statute, where he withholds moneys collected. The marshal's bond is for twenty thousand dollars; the sureties are bound to this amount only; and if no other remedy existed save on the bond, after the penalty was exhausted, he might set the court at defiance; the marshal could also be sued in assumpsit, by the plaintiff in the execution. It has therefore never been true, that a suit on his bond, governed by the acts of Congress, furnished the exclusive remedy as against the marshal himself; and we think that Congress intended by the new process act of 1828, to add the cumulative remedies, then existing by statute, in the new states, where they could be made to apply, because they were more familiar to the courts and country, and better adapted to the certain and speedy administration of justice. In our opinion, the act of Mississippi authorizing a judgment by motion, against a sheriff for failing to pay over moneys collected on execution, to the party on demand, or into court at the return day, was adopted by the act of 1828, and does apply in a case like the present, as a mode of proceeding in the courts of the United States, held in the district of Mississippi; and could be enforced against the marshal in like manner it could be against a sheriff in a state court.
The same facts that justified the judgment against the goods, &c., of the marshal, would have authorized at attachment against his person; operating even more hastily than a capias ad satisfaciendum founded on a judgment; and therefore no objection to this means of coercion can be perceived, that did not apply with still more force to the old mode by attachment. The latter remedy was never deemed an independent suit, but a means to compel the ministerial officer of the court to perform his duty, so that the plaintiff should have the fruits of his judgment; and the same end is attained by the new remedy under the state law; each, is an incident of the suit between the plaintiff and defendant to the execution, of which the proceeding against the officer is part; and to that suit the question of jurisdiction must be referred: It follows the officer had no right to raise the question.
The next inquiry is, to what extent does the statute of Mississippi apply to the courts of the United States held there?
It is contended for the defendant in error, that the act of Congress of 1828 did intend, and could only have intended, to adopt the state law entire; that when the process and modes of proceeding were adopted, the provision carried with it the penalties prescribed to enforce their performance; to recognize part as governing the practice of the federal courts, and reject other parts, as not applicable to them, would break up the whole system. That so doing is a delicate, and difficult duty, experience has taught us; it is impossible, however, to do otherwise in many cases. That of Amis v. Smith, 16 Pet., 303, was an instance. It also came up from Mississippi. By the laws of that state, the sheriff is commanded to take a forthcoming bond for the delivery of property on the day of sale, levied on by virtue of an execution; if the bond if forfeited for not delivering the property, it operates as a new judgment against the defendant to the execution, and also against the sureties to the bond; and no writ of error is afterwards allowed to reverse the original judgment. Pursuant to the laws of Mississippi a delivery bond had been taken by the marshal; it was forfeited, and then the defendant prosecuted a writ of error to this court to reverse the judgment on which the execution issued. It was held here, that that part of the state law authorizing the delivery bond to be given, was adopted by the act of 1828, and that a new execution might issue on it; but the part cutting off the writ of error must be rejected. Another instance will be given, which is presented by the statute of Mississippi, on which the present motion against the marshal was founded. The 27th and 28th sects. enact, that if the sheriff shall make a false return on an execution or other process, to him directed, for every such offence he shall pay a fine of $500, one half to the plaintiff, and the other half to the use of the literary fund, recoverable by motion. If the fact that the return is false does not appear of record, the court shall immediately empannel a jury to try such fact, and on its being found, proceed to assess the fine.
The recovery of the penalty could with quite as much propriety have been on conviction by indictment as on a summary motion; and in neither mode can it be plausibly contended that the courts of the United States could inflict the penalty on its marshal; the motion and assessment of the fine being distinct from the process and mode of proceeding in the cause of which the execution was part, on which the false return was made. This being an offence against the state law, the courts of the state alone could punish its commission; the courts of the United States having no power to execute the penal laws of the individual states.
A judgment below for 25 per cent. damages was given against the marshal for failing to pay over the debt collected; the penalty amounted to $1,750. The motion for judgment was founded on the 25th section of the act; it declares judgment on motion shall be rendered against the marshal, for the money collected, with legal interest; and also, for 25 per cent. damages on the amount.
This is just as much the infliction of a penalty, as if a fine had been imposed under the 27th and 28th sections for a false return; and for the same reasons was beyond the competency of the Circuit Court; and for so much the judgment cannot stand.
We next come to the question whether the marshal is rendered liable by his return, and the proofs, and pleadings.
By the state statute he was allowed to contest the fact by pleading to the motion, that he had not received the money. He first demurred to the written grounds of the motion; being in the nature of a declaration. The demurrer was overruled, and the defendant had leave given to plead over. He pleaded 1st, That he did not receive or collect on said execution the moneys specified in the motion. The 2d plea is to the same effect, but for the larger sum, including a bill of exchange, about which there is no controversy.
3d. That he received and collected the notes of the Commercial and Railroad Bank of Vicksburg, and the Planter's Bank of Mississippi, 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 had 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, whether the marshal had been instructed that gold or silver would be required.
Two instructions were asked on behalf of the marshal and refused-1st,
'If the jury believe from the evidence that the 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 two last 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 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 marshal's offer to deliver the notes to Breedlove's attorney, and his plea of tender had been good, then the execution creditor must have dustained the loss-but failing in these grounds of defence the officer must bear it himself.
By the Constitution of the United States (section ten) 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 March paid 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 Nutt 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 the 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 bank-notes 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 twenty-five per cent. damages, on the amount recovered against him-, and affirms, the residue of said judgment.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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