The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-04-26
United States District Court,
Before Judge Belts
PROCEEDINGS TO ATTACH THE MARSHAL. AND II


w. District Attorney that the Marshal Of this dis
triet forthwith pay into court the sum Of money col
isetsd BY him in the above entitled cause The hearing
OF the matter deferred ut the instance Of the
shall until yesterday. The order Of the Court was
served on VIM. II. Peck Chief Deputy Of the Marshal
and concurrently with the motion against the Marshal
the District Attorney for order that the said
Deputy pay the aforesaid money into court or that an
attachment be issued against him IT is objected on
the part Of the Marshal that proof is made Of per-
sonI service him Of the order Of the Court, and
the part Of the Deputy that no order has been
granted directing him personally to pay into court
Justice BE1Ts-ln order to lay a foundation for
peremptory 1t is incumbent on the applicant to show
his preliminary proceedings have all been strictly
correct (U. s. VS.. Caldwell, Drake, 1881 But the
rigor not necessary to obtain attachment to
bring party before the court upon matters touching
civil suit In such the first proceedings may
be by order that the party show why
shall not be punished for the alleged misconduct
attachment may be issued to bring him before the
court to answer for his misconduct e Re St $780, o.
and the practice of the State court governs this court
when not otherwise regulated by its own specific rules
&c. c. rule l02 d. c. r. 240) The material question
is whether proper is shown for the interpretation
Of the court against the Marshal and his deputy by
process Of In the first instance by order
that they show cause why attachment for contempt
OF court because Of misconduct In Office shall not issue
against them. Thus far the Of the Marshal and
deputy have been considered depending on a priu-
ciple common to both. Upon the facts brought
out however, by the dispositions read in court
it seems proper to separate them at this point
and dispose of each on its special circumstances
" appears that a monition and attachment against
the bark Laurens, her tackle apparel furniture
on board, and $40 900 In specie, delivered the
Marshal on the 18th Of March, 1S4s; he deputed VIM
II. Peck, J. 8 Smith, Joseph Thompson, either, to
execute the process and on the day
by Smith and Thompson, by the arrest of the vessel
and the specie. The specie was taken by Mr. Thomp-
son to the Mechanics Banking Association, in this
city, and left there subject to the order Of Ely Moore
the Marshal, and, as he, Mr. Thompson, deposes on
special deposit, according to his understanding The
Deputy Peck states, in his affidavit, that the specie
attached estimated ut $lS992, and no more con-
sstng of 81 600 in silver and vera kegs of douboons
hal pOlH Of fnrai,y
The 81 900 in silver afterwards by his direction
placed to his credit by the cashier and the gold coins
were Sold and the proceeds also passed to his credit
in the bank he he has disburscd out Of those
ncys for the official services of the Office and that the
total sum he has received in his official capacity, in
Guiding these moneys, amounts to $133 00O there
abouts and that he has disbursed and expended for
and on behalf of the Marshal during that period tho
sum of S126000 or thereabouts leaving about in
his hands, which, he states he ready to for
and pay over to the Marshall no further says he re-
signed his office of Deputy Marshal on the 23i instant
The resignation made after those
instituted and notice thereof had been served him.
On those facts the counsel for Mr.. Peck takes two
objections to the competency of the Court to enforce
an order or issue an attachment against him
1st Because, If the moneys in the came to his
hands they Were in Judgment Of law received by the
Marshal and the deputy is not answerablc for them
by summary order of the Court by suit ut law The
remedy OF the parties interested in the money must be
taken against the Marshal alone that Deputy Mar
shnl is not officer Of the court, amenabe to the
authority Of the Court by of attachment for mis-
conduct or maly CREATION in his Office.
I'd That Mr.. Peck Is no longer a Deputy Marshal
and therefore in way under the supervisory autho-
rty Of the court In respect to his more
than any other citizen.
Sd subsidiary exception is taken that the specie
cannot be impounded as money, in the hands of the
Marshal but only as n cargo in his custody, for safe
keeping, until the final decision disposition of the
cause, and accordingly not subject to be brought into
court
4h further point is taken under the terms of the
act Of Congress- of March 3, 1877 that attachment
cannot be awarded for not paying the money into court
but only the refusal neglect of the officer to pay
into incorporated bank Of the State to the credit
Of the court.
The main defence against this proceeding was placed
on the first position, that the Deputy Marshal is
officer Of the court in the to render him directly
amcnabe to it's supervision and subject to attachment
Tor not paying over moneys received by him prte off,
CHI. Whatever may be the rule at common law, In
spect to the direct liability Of Deputy Sheriff parties
there is ground for question: under the act of Con-
gress of March, 1877 that Deputy Marshal is subject
to the same summary remedy in respect to held
by him officially that the Marshal is himself
The United States Circuit and District Courts are
directed to cause all moneys being subject to their
order to be deposited In bank and provides that all
moneys which ehal be received by the officers thereof
in cases pending in court, shall be Immediately de-
posted In bank to the credit Of the court; aud
directs that II any clerk Of such court other officer
thereof having received any such moneys aforesaid
shall refuse or negecto obey the order of such court
officer shall forthwith be proceeded against by attach
ment for contempt q u s. statutes 1916 II the court
were called upon to expound the language of the
statute for the first time, there would to be
reasonable ground for not giving it its full plain and
natural import and apply it to any grade of officers
carrying into execution the powers Of the courts
receiving moneys under their by their drec
lions Chief Justice Marshall clearly decided this law
embracing Deputy Narshals, for he awarded attach
ment against Deputy Marshal to compel the payment
OF money into court collected execution; Ques
ton was raised as to the just liability of that officer to
this form Of procedure I'D peterborough r. United
States Man) This in 1922. In 1874, the point
was raised in the sixth circuit and Judge Mclean, on
careful examination Of the statute, decided that the
Deputy Marshal is officer Of the court and subject
to its power SUCH and that he may be compelled by
attachment to pay over money collected by him virue
ocii The judge remarks, that it would be dsreputa
bic to the coust and to the institutions Of justice If
such case the court could not afford summary remedy
against one of its officers In that case too the deputy
had received portion Of the money when he had no
authority to receive it, the execution having been
turned and the court held he responsible for it,
al. Sd McLean's r. 1861 If the money had come pro-
perly in the course of his official duty into the hands
Of his deputy the Marshal would undoubtedly DO liable
for it. Judge Mclean holds that the deputy is less
so, fer that cause Gbid) and 1t seems to be the
rule in Massachusetts not only that the Sheriff
ofFcii, but that such liability is consequent upon
that Of the deputy for the same acts. Il Pickering
tacRed money after the process was out Of return
and embezzeld it, The court held the Sheriff
liable because the act done under color of Of
flee. Ubid, 271) The same doctrines decided by
Parsons chief justice, in Marshal Horseman, Mass
60; Bond VS.. Ward Mass 127 and all these 20
putty for the acts for which tho Sheriff respon
sible: Independent Of the Statute referred to- the
courts OF the United States under their inherent powers
and the right to regulate their processes, possess
ample authority to prescribe rules in relation to the
collection and disposition Of moneys obtained under
their processes orders and to compel the observance
OF such rules, by attachment. (Bacon's Abrdgement
A, Comyns Digest Attachment for Contempt Of Court
Note l, d. +. ssl; 2 II. S. 53i, sec. ~ In my
opinion the Deputy Marshal is officer Of this court
amensbe to its jurisdiction for maeasanco in office by
summary order or attachment, for contempt The
Marshal would be personally liable under the Of
the rule Of the Supreme Court A. and Of this lss
for failing to collected by him forthwith into
court and the responsibility of the deputy is less
stringent is earnestly conended that the resignation
Of his Office by the deputy the 23d instant Gusts
the jurisdiction Of the court him. This Is upon
the assumption that the authority Of the court by at
tachment cannot be exercised any one except he
be- at the time officer Of the court BY this doctrine
to executory acts the court would no power to
compel the deputy to resume his Office, or proceed
thereafter in the execution OF his duty but the princ
pie does not touch the rghtfu authority of the court
In respect to acts and omissions of its officers whilst
acting as officers The power Of the courts to afford
remedy against sheris by attachment after they lea
Office for maversation neglect Of duty in office il
constantly exercised, and has never been questioned
Irtlu