William H. McFarland v. William M. Gwin, (late Marshal.)

William H. McFarland v. William M. Gwin, (late Marshal.) A marshal is not authorized by law to receive any thing, in discharge of an. execution, but gold’and silver, unless the plaintiff authorizes him to receive something else. • The case of Griffin et ah v. Thompson, 2 Howard, 244, reviewed and confirmed. A marshal, like a sheriff, is bound, after the expiration of his term of office, to complete an execution, which has come to his hands during his term; and an execution is never completed until the 'money is made and paid over to the plaintiff, if it is practicable to make it. This case was brought up, by writ' of error, from the Circuit Court of the United States for the southern district of Mississippi. McFarland had recovered a judgment against one Passmore for the sum of $9763 10, and. on the 6th of July, 1839, issued a fieri facias. On the 1st of November, 1839, the execution was levied upon sundry pieces of property by the marshal. On the 20th of December, 1839, a venditioni expmas was issued, to which the marshal made the following return: “ The within named property was sold on the 27th .day of January, 1840, and I received in payment therefor, on that day, the sum of .nine thousand dollars'in the post notes of the Mississippi Union Bant, which are herewith returned'. 'Received-, also, on the same day, the balance of the execution from the defendants, in the same kind of money, which is likewise herewith returned. . ícWm. M. GwiN, Marshal, Per J. F. Cook,, deputy.” Attorney's Receipt. “ May 22d, 1840, Received of Wm. M. Gwin, marshal, the sum of five hundred and fourteen dollars, being the amount’of my commissions, 1 having refused to receive the' balance'belonging to the plaintiff, as the same was tendered me by Mr. Gwin in Union • Bant of Mississippi post notes, in which kind of money he says and returns that it was collected. “Wm. R. T. Chaplain, Pl’tff’s att’y.” At November term,"1841, McFarland, by. his counsel, moved the court for a . judgment against Gwin fob the amount due on the óri-ginal judgment, with interest at the rate of eight per cent, from the 14th of Máy,-1839, to the 27th of January,-1840, and for interest upon the aggregate sum .-at the.rate of thirty per cent, per annum, from the 22d of May, 1840, until paid. The- motion was submitted to the court upon the following agreed • case,- viz.: (The writs and returns were stated, and then the agreement continued thus:) “And it was proved that the money was. demanded on the 22d day of May, 1840; also,..that at that date the Union post notes were at forty per-cent, discount. “ The defendant proved, that on the demand he tendered the post notes of the Mississippi Union Bank, which were refused by the attorney of the pláintiff. .He also proved, that' from August, 1838, ■ when the Mississippi Union Bank went into operation, until about .the middle of February, 1840, the .post notes of that bank.constituted nearly the "entire circulating medium of the.state. That they had -been-treated as cash in- all' business-;transactions during that time. That they were habitually and- ordinarily received by thé sheriffs throughout the state, in satisfaction of executions,, and in payment of property .sold under them. That the marshal had been accustomed, during all that time, to collect the post notes of said bank upon executions; and. that the attorneys of the court, and plaintiffs in executions,' had always, without objection, received such notes from thé" marshal as money. That on the ,27th day of January, 1840, the day of sale, the post notes of'said bank were, worth five or six per cent, less than .specie, and were worth more than they, had previously been. That about the.middle of Febrú-ary, 1840,-they suddenly depreciated in value, and continued to' decline until the 22d May, 1840. “ The above was all the evidence in thé case. H. S. Eustis, W. Yerger.” Upon this statement of facts, the,court were of opinion that judg- ■ ment should be entered for- the defendant. To which- opinion of the court, the plaintiff, by his counsel, excepted, and upon this exception the' case came up. Coxe, for the plaintiff in error. Walker, for the defendant in error.- [MAJORITY — Mr; Justice McKINLEY-] Mr; Justice McKINLEY- delivered the opinión of the court." McFarland-recovered judgment against Ellis. P. Passmore, for the sum of $9,763 10 cents, in the Circuit Court of the Unitéd States, for the southern district of Mississippi-; and on the 6th day of July; 1839, a fieri facias issued .thereon, directed to the marshal of the southern district of Mississippi, commanding-him, that of the goods and chattels, land,s and tenements of the said Ellis.P. Passmore, he should cause to' be made the said sum of $9,763 10 cents, upon which fieri facias the marshal returned, that he had levied of the goods and chattels, lands and tenements of the defendant sufficient to satisfy the fieri facias; but which'property had not been sold for want of time. And thereupon a venditioni exponas issued to the marshal, commanding him-to expose to sale the goods and chattels, lands and tenements levied on, upon which he returned, that he had sold the-property levied on, and received the full amount of the fieri facias, in die post notes of the Mississippi Union Bank. The attorney for the plaintiff received of the- marshal $514 15 cents, being the - amount of the attorney’s fees; for which he gave a receipt, but refused to receive any part of the notes foV the plaintiff. At the November term; 1841, of the Circuit Court, the plaintiff moved the court for judgment against the marshal for the amount of the fieri facias and interest thereon. On the-trial of the motion, if-was-proved by the plaintiff, that the money was demanded on'the 22d day' of May, 1840; and at that date the post notes of the Union Bank were selling at a- discount of 4(5 per cent: Gwin, the defendant, proved that on the demand, made, he had tendered the post notes of-the Union Bank, which were refused by the- attorney of the plaintiff; and that from- August, 1838, when the Mississippi Union Bank went into operation, until about the -middle of February, 1840, the post notes of. that bank constituted nearly-the entire circulating medium of the state:; that they had been treated as cash in all business transactions during that time, and had been received by the marshal- and the sheriffs-of the state in payment of executions. And thereupon the court rendered judgment against the plaintiff, and for the defendant. . . _ . _ To Reverse this judgment the plaintiff has prosecuted this writ of error. ' ■ This question, is fully settled in the case of. Griffin & Ervin v. Thompson, 2 How. Rep. 244. In that case this court held,"that the marshal was not authorized by law to receive, any thing in discharge of the execution, but the gold or silver coin of the United States., To this general proposition wc give our full assent; but we do not mean . to say there is no exception to this general rule. • If the plaintiff were to authorize the marshal to take bank notes,'of any description, in payment of the execution, we have no hesitation in saying, a payment by the defendant to the marshal in such bank notes would be a satisfaction of the judgment. But as Gwin failed to prove any such authority from.the plaintiff," he was. clearly.liable for the whole amount of the execution with legpl interest thereon, except the amount paid to the plaintiff’s attorney. It has been contended, however} in this case, that, at the .time this motion was made, Gwin was not marshal, his time having expired, and another having been appointed in his stead.'. It is a well settled principle of law, that if .an execution come to the hands óf a sheriff to be executed, and his term of -office expire before he executes it," he ’ is bound nevertheless to complete the execution; and the same rule applies to a marshal. An execution, is never .completed until the money is made and paid over to'the plaintiff, if it be practicable to make it. All the remedies against the. marshal, necessary to -compel him to •pay over the money he has made, survive his term of service, and remain in full force against him until the execution shall be completed. The judgment of the'Circuit Court must, therefore, be reversed.