# Gwin v. Breedlove (43 U.S. 29)/Dissent Daniel

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* Dissenting Opinion Daniel
United States Supreme Court
43 U.S. 29
Gwin v. Breedlove
Mr. Justice DANIEL dissented.
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 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 proccss 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 3d and 4th pleas. But whether or not the conduct of the marshal can in literal strictness be denominated a failure or refusal to levy or to return an execution, it is surely not a failure or refusal to pay over money actually levied, and, therefore, the proceeding, 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 farther 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.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that so much of the judgment of the said Circuit Court in this cause as adjudges William M. Gwin, the plaintiff in error, to pay 25 per cent. damages thereon be, and the same is hereby reversed and annulled, and that the residue of the judgment of the said Circuit Court in this cause, be in all respects, and the same is hereby affirmed.
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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