# Gwin v. Breedlove (43 U.S. 29)

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## Dissenting Opinion

    Daniel
United States Supreme Court
43 U.S. 29
Gwin v. Breedlove
THIS case was brought up by writ of error, from the Circuit Court of the United States for the southern district of Mississippi, and arose upon the following statement of facts:
At some period prior to the 13th day of February, 1839, James W. Breedlove, the defendant in error, had recovered a judgment in the Circuit Court of the United States for the southern district of Mississippi, against certain persons there, for the sum of $12,976, with interest at the rate of 8 per cent. per annum, from the 24th of May, 1838, until paid; and on the said 13th of February, an execution was issued upon the judgment, and placed in the hands of Gwin, the marshal. The sum of $5000 was collected in unexceptionable money, and paid over to plaintiff; the balance was received in notes of the Commercial Bank of Vicksburg, and Planter's Bank of Mississippi, which the plaintiff refused to receive.
At the November term, 1839, of the Circuit Court of the United States, Breedlove moved for a judgment against Gwin, the marshal, for the sum of $7976, being the balance due to the plaintiff on the execution. This motion was made under a statute passed by the legislature of Mississippi on the 15th day of February, 1828, which had been adopted in the practice of the Circuit Court by a rule of that court. The statute provided, (Howard and Hutchinson, 296,) that if the sheriff should fail to pay, on demand by the plaintiff, money collected by execution, such sheriff and his sureties should be liable to pay to the plaintiff the whole amount of money so collected, together with 25 per cent. damages thereon, with interest at the rate of 8 per cent. per annum, to be recovered by motion before the court to which such execution is made returnable. The statute further provided for a jury, if the sheriff should deny that the money was collected by him. In case the sheriff failed to return as execution on the return day thereof (Howard and Hutchinson, 298,) the plaintiff was allowed to recover judgment against the sheriff and his sureties, with 5 per cent. damages, by motion before the court. It was also declared to be a misdemeanor for the sheriff to refuse to pay over money which he had collected, and punishable on conviction, by removal from office. How. and Hut., 299.
The reasons filed in support of the motion were, that the marshal had made the money and failed, or refused, to pay it over to the plaintiff.
Gwin demurred to the motion; but the demurrer being overruled, he filed four pleas. In the first two, he denied having received money. In the last two, he alleged that he had collected and received notes of the Planter's Bank of the State of Mississippi, and of the Commercial and Rail Road Bank of Vicksburg, due and payable on demand, when said banks were paying gold and silver on all their notes payable on demand; which notes, so collected and received, 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 received were the current circulating medium; and the same were tendered to the attorney of the plaintiff, before the suspension of specie payments by any or either of said banks-all of which said bank-notes said defendant had always been ready and willing, and was then ready and willing, to pay over to the plaintiff or his attorney.
The plaintiff joined issue upon the first two pleas, and replied, specially, to the last two, that the defendant was, previous to the reception of the notes, instructed, that gold or silver would be required of him. Issue was joined upon the last two replications.
Evidence was offered at the trial, that the attorney of the plaintiff, Breedlove, told the marshal frequently, before the money was collected, that specie would be required; that he had demanded the money of the marshal, who refused to pay him; that the marshal never tendered him any bank-notes, and that the notes of those banks, before their suspension, were received in the community everywhere as specie, and by the sheriffs and officers in collection of executions.
The execution was issued on the 13th of February, and the banks suspended specie payments on the 15th or 22d of March, 1839.
The counsel for the defendant prayed the court to instruct the jury as follows:
1. That if the jury believe from the evidence that bills of exchange and bank-notes were received by the marshal, and not gold or silver, then the jury will find the issues on the first and second pleas in favor of the defendant.
2. If the jury believe that the instructions given to the marshal were intended to authorize the marshal to collect gold or silver, or its equivalent, and he collected bank-notes which were equivalent to gold or silver, then they should find the issue for the defendant.
3. And that if they find that the marshal received banknotes or bills of exchange and not money is 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 first and third of which charges, the court refused to give, but gave the second charge to the jury; to which refusal to give the first and third charges, the defendant excepted.
The jury found for the plaintiff.
Walker, for Gwin, the plaintiff in error.
C. Cox, for the defendant.
Walker made the following points:
1. That the statute of Mississippi had not been strictly pursued.
2. That it did not apply to marshals of the United States.
3. That there is a want of jurisdiction, inasmuch as the record does not show, in any part of it, that Breedlove was not a citizen of Mississippi.
1. The statute is highly penal in its character; and, therefore, like all other penal statutes, must be construed strictly. It provides (Howard and Hutchinson, 296,) two remedies against sheriffs; one for not paying over the money which they may have collected, and the other for neglecting to levy the execution. The motion below was under the first head, which was an erroneous proceeding, because bank-notes are not money. The return states the collection to have been in bank-notes; but, if they had been notes of a mercantile firm, it would clearly not have been money. The one is no more money than the other. The statute is so highly penal that a refusal on the part of the sheriff to pay, is declared to be a misdemeanor, (page 299,) and punished by removal from office.
The agreement of the sheriff, to receive any thing but money, does not bind the plaintiff. 5 How., 246. Where the sheriff returned that he had received bank bills, it was not considered a legal return or binding on the plaintiff, and a new execution was awarded. 5 How., 621. A sheriff cannot take a negotiable note and return the execution satisfied. 1 Cow. (N. Y.), 46. The payment must be in cash. 9 Johns. (N. Y.), 263. There being no money received, the remedy pursued ought to have been for omitting to collect the money. How. and Hut., page 642, sec. 42.
2. The statute does not apply to marshals. It was passed on 16th February, 1828. The process act of Congress was passed on 19th May, 1828; but no rule of court has ever adopted the state law. How came marshals, then, to be under the state law? Their duties are pointed out by acts of Congress, (Gordon's Digest Laws of the United States, articles 610, 611,) and a party injured may sue on their bond and recover damages legally assessed. But the sheriffs, under the state law, are subject also to a penalty of 25 per cent. in addition: Can the marshals be legislated by a state into this responsibility? The sheriffs are also to be removed from office: Can a state law require the President of the United States to remove a marshal? If not, where can the line be drawn?
The words in the act of Congress of 1828 are borrowed from the act of 1792, and direct that the process at common law used in state courts should be adopted in the courts of the United States. But the process in the original suit below had been exhausted. The motion against the marshal was a new proceeding, and not a part of the process of the other case.
10 Wheat., 1, 32; 6 Pet., 658; 7 Cranch, 654; 1 How., 300.
2 Dall., 396,
5 Mason, 26,
12 Pet., 300, that attachment laws of states are not included in the process act.
The courts of the United States do not adopt state, criminal, or penal laws; 17 Johns. (N. Y.), 1, 4.
3. Breedlove is not shown in the record to have been a citizen of another state. This court has decided that, as the courts of the United States are of limited jurisdiction, it must appear on the face of the record. 10 Wheat., 192; 2 Cranch, 9; 2 Baldw., 275; 13 Pet., 45; 4 Wash. C. C., 32.
C. Cox, for defendant, argued:
1. That it was no ground of exception to defendant's motion; that it does not show him to be a citizen of a state other than Mississippi; in all other respects it is formal.
2. The plaintiff was accountable on his return, and on the facts established by the verdict, for the amount of $7,000 in money.
3. The statute of Mississippi is applicable to the present case.
1. The question of jurisdiction was settled by the original judgment; and a ministerial officer of the court cannot be permitted to raise the objection. After an appearance, the objection cannot be made. 3 Pet., 459; 5 How., 432; 9 Pet., 156.
2. Issue was joined below upon the question whether the marshal received notice that coin would be required, and decided against him. The plaintiff below was, therefore, entitled to consider the marshal's return as of money. A tender of bank-notes is good, unless objected to. 10 Wheat., 333.
3. The act of Congress of 1828 was subsequent to the statute of Mississippi. Process means the proceedings until the end of the suit, the possession of the fruits of the judgment. 10 Wheat., 1, 51.
The statute of Mississippi was adopted by rule of court.
The bond of the marshal is a cumulative remedy. All courts have authority over their officers, and the remedy for injury is by motion. There is nothing unusual in the proceeding. All amercements are penal. In 9 Pet., 156, a judgment was entered on motion and refused to be re-opened.
Walker, in reply.
If the return of the marshal was that the execution was satisfied, was it not an end of that suit?
No matter who makes the question of jurisdiction, the court will always notice it. The original judgment does not settlet, because the proceedings there do not make the necessary averment.
The case in 9 Peters does not apply: there is no case where the penal laws of a state have been applied to marshals.
Mr. Justice CATRON delivered the opinion of the court.

## 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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