text:
    William A. Dromgoole, Frederick G. Turnbull, and Charles A. Lacoste, Plaintiffs in error, v. The Farmers’ and Merchants’ Bank of Mississippi.
    A statute of Mississippi allows suit to-be brought against the maker and payee, jointly, of a promissory note, by the endorsee.-
    But an action of this kind cannot be maintained in the courts of the United States, although the plaintiff resides in another state, provided the maker and payee of the note both reside in Mississippi.
    This case was brought up by writ of error from the Circuit Court of the United States for the southern district of Mississippi.

      In 1838, the following promissory note was executed:
    2899 rfifc Princeton', Washington co.,May 11th, 1838.
    On the 1st of January, 1839, we, or either of us, promise to pay to the order of Briggs, Lácoste and Co., two thousand eight hundred and ninety-nine -/^ dollars for value received, payable and negotiable at the Planters’ Banin of Mississippi, at Natchez.
    Will. A. Dromgoole,
    F. G. Turnbull.
    The makers and payees were all residents of the state of Mississippi. Lácoste-, in the .partnership name, endorsed it to the Farmers’ and Merchants’ Bank of Memphis, the stockholders of which are alleged tc> reside in Tennessee. The bank brought suit upon it in the Circuit Court of the United States for the district of Mississippi, The suit was brought against Dromgoole and Turnbull -as the makers, and also against Lácoste; the junction being permitted by a statute of Mississippi. The defendants pleaded in abatement as follows:
    “And the said defendants, who are citizens of the state of Mississippi, in their own proper persons, come and defend the wrong and injury, and say: that' the persons composing the commercial firm of Briggs, Lácoste and Co., to whom the said promissory note declared upon was made and delivered at the time of its date and delivery, then were, and yet are, citizens of and resident in the state of 'Mississipi, and were so at the time of the supposed transfer'and delivery.; of the said promissory note to the said plaintiffs, by reason whereof, this honorable court cannot in law have or entertain jurisdiction of this cause, and this they, the said defendants, are ready to verify) Wherefore, the said defendants pray judgment of the said writ and declaration, and that the same may be quashed.
    Sanders, for defendants:”
    To this plea the plaintiffs demurred, and the court sustained the demurrer. Judgment was accordingly entered for the plaintiffs, and to review the opinion of the court upon the demurrer, the present writ of error was brought'.
    The case was argued by Walker for the appellants, who relied apon the cases in 16 Peters, 89 and 315.
   Mr. Justice STORY

delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the southern district of Mississippi.

The original action was brought by the bank of Memphis, alleging the stockholders to be citizens of Tennessee, against the plaintiffs in’ error, (the original defendants,) alleging them to be citizens of Mississippi ; and it was founded upon a promissory note made by Dromgoole and Turnbull, (two of the defendants,) dated at Princeton, Washington county, Mississippi, May 17th, 1838, whereby on .the 1st of January, 1839, they, or either of them promised to pay to the order of Briggs, Lácoste and Co., .$2899 50, for value received, payable and negotiable at the Planters’ Bank of Mississippi, at Natchez. The declaration alleged title in the bank to the note by the endorsement of the payees, Lácoste using the name, and description of Briggs, Lácoste and Co. to them; and the suit was brought jointly against both the maker and the payee, in conformity to a statute of Mississippi, authorizing .such a proceeding. The defendants pleaded that they are citizens of Mississippi, and that the persons composing the firm of Briggs, Lacoste and Co. .were, and yet are citizens and residents of. Mississippi, and were so at the time of the supposed transfer and delivery of the promissory note to the bank. To this plea there was a demurrer and joinder, on which the Circuit Court gave judgment for the bank-; and the present writ of error is brought to revise that judgment.

The. 11th section of' the Judiciary act of 1789, ch. 20, provides, “Nor shall any district.or circuit court have cognisance of any’suit to recover the contents of any promissory note j or alter those in action in favour-of an assignee, unless the suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.” Now, the present case falls directly within the prohibition of this clause. The spit is brought by the plaintiffs to recover the. contents of a promissory note of which they are the-endorsees of the payee, and the payee and the makers are all citizens of Mississippi. The ground on which the original judgment was given, probably, was that the statute of Mississippi required all- th'e- parties to the note to be joined in the suit; and as all the plaintiffs were citizens of Tennessee, and all, the defendants citizens of Mississippi, it was a case, falling'directly within the general provisions of the 11th section of the Judiciary act of 1789, ch. 20, which gives jurisdiction to the Circuit Court in cases,where “ the suit is between a citizen of the state where the suit is brought, and a citizen of another state.” But it has been already decided by this court, that the statute of Mississippi is óf no forcé or-effect in the courts of the United States, and that independently of that statute-no such joint action is by law maintainable. This was decided in Keary v. The Farmers’ and Merchants’ Bank of Memphis, 16 Peters, 89. The other point, that the case falls within the prohibition of the 11th section of the. Judiciary act of 1789, ch. 20, was as fully recognised by this court in Gibson and Martin v. Chew, 16 Peters, 315.

There is nothing then in the present case which is open for argument. The,judgment of the Circuit Court of the southern district ■ of Mississippi is, therefore, reversed, and the'cause remanded to that court with .directions-to. enter a judgment for the defendants.

order.

This cause came on to be heard on the transcript of the record from, the Circuit Court' of the United States for die southern district ' of Mississippi, and was argued by counsel. Oh consideration whereof, It is now here ordered and adjudged by- this court, that ■ the judgment of the said Circuit Court, in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said ’ Circuit Court, with directions to that* court to enter judgment for the defendants.


source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    Thomas Griffin and Hugh Ervin v. Robert Thompson.
    A marshal has no, right to receive bank notes in discharge of an execution . unless authorized to do so by the plaintiff.
    .If the marshal does receive such papers,-the court, in the! exercise of its power to correct the irregularities of its officer, will refuse amotion of-the defendant to have satisfaction entered on the judgment, and refuse also to quash a second fieri facias.

    Upon a.certificate-of division from the judges of the. Circuit Court for the southern district pf Mississippi.
    This was a motion made' by Thomas Griffin and Hugh Erwin to havé -satisfaction- entered on an execution offieri facias, which issued from the clerk’s office' of the court against them on the 4th day of June, 1840, in favour of Robert Thompson, for the sum of $>1*740 02, with interest thereon at the rate pf 8 per cent, per annum, from the 7th day of November,-1839, until 'paid, together with costs. And also to quash an execution oí fieri fiadas' which issued against them. in favour of said Thompson, on the samp judgment, on the 6th day of November, 1841.
    In support, of this motion, the plaintiffs below read in evidence first, an execution offt-fa- numbered 874, which was sued out of the court against Griffin in favour of Thompson on the 1st day of January, 1840, returnable on the 1st Monday of May ensuing, for the sum of $1740 .02 and the costs, this being the amount of a judgment recovered in the court on the 7th day of November, 1839. Upon this execution was'endorsed the return of the marshal, dated May the 4th, 1840, setting forth the levy of that process on the 25th of March, 1840, on .certain subjects of property, the execution of a forthcoming bond by. Griffin with Ervin as surety fpr'the delivery of the property at the-day and place of sale, and the forfeiture of the bond by the failure of • the obligors, to. comply with its condition. Accompanying this return is a receipt in these words:
    January 2d, 1840. Received on this execution one-thousand dollars in post-notes of the Mississippi Uniqn Bant.
    Wm. M. Gwin, Marshal,

    By his deputy, Jno. F. Cook.
    The plaintiffs next, produced in evidence, their forfeited forthcoming bond with the execution offieri fiadas sued thereon, in favour of Thompson, on the 4th of June, 1840, returnable to the 1st Monday of November with the following endorsements and returns thereon, vizi: ■

      Endorsement on Fi. Fa.

    Ño security of any kind is to be taken. This execution is entitled to a credit of one thousand dollars, paid 2d January, 1840, in Union post-notes. See marshal’s return.onft.fia. Ño. 874, to May term, 1840.
    (Signed) Wm. Burns, CPk.

      Marshal’s Return.

    Made on this case four hundred dollars, Nov. 3d, 1840. Received balance of this, case, in full for costs, &c., say five hundred and fif- ■ teen dollars. Wm. M. Gwin, Marshal,

    . Nov. 3d, 1840. By W. L. Batto ‘ Dept.

    They then read in support of their motion the-execution of fieri fiadas sued forth against them in favour of Thompson, .on the 6th day of November, 1841, which execution is the same that the plaintiff in the court below moved to quash. Upon it is the following endorsément:.

      Endorsement.

    This execution is entitled' to a credit of $803 47, paid 3d November, 1840, on fi.fa. No. 451, to Nov. term, 1840. No security of any kind is to be taken for balance. W. H. Brown, CPJc.

    Marshal’s return, stayed by supersedeas,’ received April 1, 1842.
    A. Miller, Ml.

    By dept. J.- S. Gooch.
    They then read in evidence to the court the following receipts which were proved to be signed by,- and in the handwriting of, John F. Cook, who, at the date of said receipts, and before, was' a deputy of William M. Gwiri, marshal .of the southern district of' Mississippi, which receipts are in the words and figures following, to wit:
    Received of Thomas Griffin the sum of eight hundred dollars, to be applied to part payment of an execution obtained vs.- him at the Nov', term, 1839, of Circuit Court United States'as security for T. Griffin, which amount I am to credit said execution with.
    December 10th, 1839. W. M. Gwin, Marshal,

    By his deputy, Jno. F. Cook:
    " Received of Thomas Griffin the sum of two hundred dollars in Union Bank money, to be applied to a certain execution I hold vs,. said Griffin, or I am to-return the said money, to the said Griffin.
    Feb’y 17th, 1840. Jno. F. Cook.
    The said sums'of $8Q0 and $200, mentioned in said receipts, constituting the $1000 in post-notes of the Mississippi Union Bank, returned by the marshal as received oh 2d of January, 1840, on execution offidri facias heréin-before referred to, dated 1st January, 1840.
    They also read in evidence tp the court the-following additional receipts, to wit:
    Thompson. ■v. ) Circuit Court U. S. fi.fa. to Nov. term. 1840Griffin and Surety, .

    Received of Thomas Griffin in the above stated case, the sum of four-hundred dollars in Louisiana money.
    • Nóv; 3d, 1840. ’ W, M. Gwin, Marshal,

    Per deputy, Jno. F. .Cook.
    Received of Thomas Griffin the sum of five hundred dollars, to ' be applied to the payment of an execution, in the hands of the marshal, of Thompson v. Thomas Griffin and sureties.
    Nor. 1840. Wk. M. Gwin, Marshal,
    By his deputy Jno. F. Cook.
    The said Robert Thompson then, in opposition to said motion, read in evidence to thg .court, the judgment pronounced at its November term, 1841, quashing so much of the return of the marshal made on the execution of fieri facias numbered 874, whiqh issued on .the 1st day of January, 1840, as stated that he had.“ received on said execution one thousand dollars in post notes .of the Mississippi Union'Bank,” which jhdgment is in the words and figures following, to wit:
    “Robert Thompson v. Thomas Griffin.)

    Motion by the plaintiff to quash that part of thé marshal’s return on fi. fa. No. 874, to May term, 1840, which is as 'follows: ? January 2d, 1840. Received on this execution one thousand dollars in post notes of the Mississippi Union Bank.’
    “Motion sustained and said marshal’s return on said.fi.fa. quashed, and an alias fi. fa. ordered, to May term, 1842.”
    The said Thompson then introduced Joseph Holt as a witness, who being .sworn, stated that he was one of the plaintiff’s attorneys of record, Who obtained the said judgment of $1740 02' against said Thomas Griffin, at the November term, 1839, ofthe court; and that as the attorney of record of the said plaintiff, (Robert Thompson,) he had full authority to collect said judgment, and to control the executions which might issue thereon; that, supposing the execution bn s'aid judgment when issued would come ihto.the hands of the said “Jno. F.-Cook',” deputy marshál;- he had a conversation with him a short time after the judgment was rendered, say some time in the month of November, 1839, in .which he notified the said Cook distinctly, that good money would be required to be collected on said judgment, and that he must receive no other kind of money on the execution, when it should come into his hands. That he saw said Cook several, times during the ensuing winter, but that he (Cook) never mentioned to him that he had made any collection on said judgment. That the first knowledge or intimation witness had of the'receipt of the $1000 in post-notes of the Mississippi Union Bank, mentioned m the return of the said Cook on the execution as collected 2d January, 1840, was in the month of May, 1840, when going into the , marshal’s office at Jackson, Mississippi, he found the said execution had just been returned, with the receipt of the $1000, in post-notes of the- Mississippi Union Bank, endorsed thereon as aforesaid.
    Witness at once refused to receive said post-notes from the marshal, in part satisfaction of said, execution, and-has ever since refused, and still refuses to receive them. Witness further stated, that at the time . referred to, (May, 1840,) sai.d post-notes had greatly depreciated in value, and were not-worth more than fifty cents to the dollar, and ■ that on the 17th of Fébruaiy, 1840, said post-notes Were worth but seventy-five cents to the dollar. That .he immediately entered a motion to quash said return of the said deputy marshal, (Cook,) which motion was sustained by the court at its November tenn, 1841. Witness further stated that in' a conversation he had held with said Thomas Griffin, he (Griffin) had stated that the $800 mentioned in said receipt, dated 10th December, 1839., and the $200 mentioned in said receipt, dated 17th February, 1840, constituting together the $1000 returned ás made .on .2d January, 1840* in “ post-notes of the Mississippi Union Bank,” were paid by him to said John F. Cook, deputy marshal as aforesaid, at tipies mentioned .in the said receipts respectively, in post-notes of the said Mississippi Union Bank. It was also in proof that, on the 10th day of December, 1839, the post-notes of the Mississippi .Union Bank were current in the state of Mississippi, and were generally received by the sheriffs and marshal unless instructions to the contrary were given by plaintiffs or their attorneys. It was also ¡admitted that Griffin had no actual.notice of the instructions given, by the plaintiff’s attorney in this case to said John F. Cook, deputy marshal. This was all the evidence offered either in support or in opposition'to the plaintiff’s motion. Whereupon on the question .whether satisfaction should bp entered on said execution of fieri facias, which was sued out on the 4th of June, 1840, in favour of said Robert Thompson v. Thomas Griffin ¿nd Hugh Ervin for the sum of $1740 02 with interest and costs as aforesaid; and'also on the question whether said execution offieri facias which was -sued out against the said Griffin and Ervin on the 6th of November, 1841, should be quashed, the judges were opposed in opinion, and the questions were ordered to be certified to this court for decision.
    The cause was argued, by Henderson for Griffin, the defendant in the original suit below, who had made the motion to have satisfaction entered on the judgment and to quash the second fieri fados ; and by Harrison and Holt for Thompson, the plaintiff below.

      Henderson, for plaintiffs.
    This was a motion in the court , below to have satisfaction-entered on a certain execution against the plaintifis, in, the-motion which issued against them on 4th June, 1840; and to b.ave a subsequent execution quashed, which was issued on the same judgment, 6th Nov. 1841, and after-said judgment was wholly satisfied, -as the plaintiffs in the,motion allege.
    The first execution issued: 1st January; 1840, for $1740 02, returnable to May term, 1840, which the marshal returned bonded, and with a credit in these words:
    «January 2, 1840. Received on this execution one thousand dollars in post-notes Of the Mississippi Union Bank.”
    After the return, viz., 4th June, 1840-, the plaintiff sued out another execution, on which is endorsed by the clerk:
    « This execution is entitled to a credit of one thousand dollars, paid 2d Jan’y, 1840, in Union post-notes.”
    This execution, returned to Nov. term, 1840, bears the marshal’s endorsement, as follows:
    « Made on this, case four hundred dollars, Nov. 3, 1840. Rec’d balance of this case ■ in full, for costs, &c., say five hundred and fifteen dollars. Nov. 3,1840.”
    On 6th Nov. 1841, notwithstanding the previous satisfaction, so made and returned, another execution issued, credited only by $803 47, paid 3d November, 1840.
    ' This constitutes the plaintiff’s case in the motion, though some receipts and statements of aceount were presented, -substantially in accordance with theforegoing returns of the marshal.
    The defendant in the motioi) then exhibited a judgment of November term, 1841, of the court below, quashing so much of the mar-' shal’s- return on the first execution, as denoted the receipt of $1000 Union post-notes, on 2d Jantiaiy, 1840, which judgment was entered, on.the now defendant’s motion, with-the court’s order for-the execution, which subsequently issued, of 6th Nov. 1841.
    The attorney of the plaintiff in the execution (the defendant in this motion) testified, that in November, 1839, he informed Cook, deputy marshal, that “ good money” would-be required.
    That he knew nothing of the collection of the Union Bank notes till in May, 1840, and he then refused' to receive them.
    That'in May, 1840, these notes were down to fifty cents in the dollar, and on 17 th February, 1840, they were worth but'seventy, five, cents to the dollar.
    ■ Record states, it was.in proof these notes were current 10th D.ec. 1839, and that the defendants in- the execution (plaintiff’s ih this motion) knew nothing of plaintiff’s instruction-to Cook, the deputy marshal.
    On the cáse so presented, the court below divided in opinion, whether or hot the-execution of June 4, 1840, should be discharged .as. against the defendants therein; and that issued against them of November 6, 1841, quashed.
    The sole question presented' by the record is, Does the record in. it§, proofs show the defendants, in the executions, which issued- on January I, 1840, and June' 4, |840, lawfully paid aud discharged them ? For if-so, the motion in the court below should' be sustained'.
    The record, presents no case of the marshal assuming to settle a plaihtiff.’s debt, without a writ authorizing him,
    No case of a false return of the execution.
    No casé of a sheriff’s assuming to discharge an execution by án offset of his own debt to the defendant in execution.
    No case of taking promissory hotes in discharge of an execution.
    No case, in our opinion, of the sheriff having seized ■, or received anything, in satisfaction of the execution, which the law did not authorize him, in his discretion, to receive in discharge of the writ. We make no question against'the adjudged cases upon such and similar facts.
    Nor shall we contend, if this motion was against the marshal to pay the plaintiff in execution in lawful coin, he could resist the mp7 tion, by showing- he had received, in satisfaction of the execution of the defendant, copper coin, or unlegalized foreign coin, or bullion, or Treasuiy .notes of the United States, or bank-notes of the states.
    But the first question is, Are not. state' bank-notes a good tender, if hot objected to ? All our' state courts uniformly decide they are,. and so decided this court in 10 Whéat. Rep. 347; idem, Gwin v.Breedlove; decided at this term.
    And bank-notes certainly constitute good and lawful payment, if received; and the effect of-such payment cannot, for cause of depreciation of the notes before redeemed, or the like, be avoided, and the original demand resorted to; as if .promissory notes only had been received. All our state courts decide this-principle continually, and so in England. Burroughs’s Rep. 457.
    These principles of tender and .payment in bank-notes, as between debtor and creditor, have never been' questioned. Copper coin, Treasury notes', and bank-notes, are the greater- part of our currency; and as all society use them as currency, as the law recognises and - legalizes their circulation, debtors may lawfully tender them in payment, and creditors may lawfully recei re them, though not legally bound to do so.
    The marshal is the plaintiff’s agent, who, by his execution, may receive payment of the plaintiff’s debt. He who may lawfully receive payment, may. have lawful tender of payment made to him. What sophistry can plausibly maintain, that a tender of bank-notes to the principal, and not objected to, is a good tender; or payment in such notes to the principal is a good payment; and yet the liké tender, and like payment,- is not equally good when made to the agent ?
    But it is said in this cáse, the .principle forbid' the marshal to receive bank-notes.,' Admit the fact thus; it is also ádmitted in the record, the defendant in execution, who tendered and paid his banknotes to the marshal,, was ignorant of plaintiff’s instruction; and we maintain this fact can only avail the plaintiff in execution as between himself and the marshal, who may have disregarded his'instruction.
    See decision, Gwin v. Breedlove.
    But the marshal’s return of satisfaction of the execution in banknotes, in no state of case, as against the debtor in execution,, can be treated as a nullify; and so I understand the imtimation of the court in the case of Gwin v. Breedlove.
    But the proof in this case is not, as in the case of Gwin v. Breedlove, that specie would be required of the officer; on the contrary,, the inference is irresistibly otherwise. The testimony of plaintiff’s attorney for the execution is, that in November, 1839, he told Cook, the deputy, that “good money would be required.” And it is in proof also, that this bank paper was current — was “ good”- — as late as 10th December, 1840, and no proof it was depreciated before 17th Februaiy, 1840, being one and a half months after its paymént;while -the historical fact, is, the bank .did not suspend specie payments till 22d March, 1840. The .payment of these notes on execution wás 2d January, 1840.
    . It is in proof, too, that much-of the remaining amount due by this execution was paid in bank-notes of the state of Louisiana.
    Why then has not the plaintiff.in execution sought to have execution for the whole amount of the judgment?. Why, but that he hás regarded the Louisiana bank-notes “ good money” within the meaning of his instructions.
    We contend, too, the plaintiff adopted this payment of $1000 on the first execution of 1st January, 1840, by issuing his 2d execution, of 4th June, 1840, with a credit endorsed, of the $1000 previously paid. The attorney proves he knew the payment of this $1000 'in May, 1840; and in June following he issued his second execution, adopting the’payment by way of credit-.'
    This was after, he. had told the sheriff he would not receive it, and the legal presumption must be,-he 1 ad changed his purpose, and that-the clerk-but obeyed his instructions in proceeding to collect the remainder by,a further execution.
    This court,, as matter of evidence, aré bound to regard this act as prima fade the act of the party, and- a subsequent ratification of the previous payment. In conformity-with this legal aspecfof.the proof,’ the .balance, due is returned,fully,satisfied, on "the 2d execution, 3d November, 1840. One year afterwards, November, term, 1841, a motion was made and sustained, .not against the marshal, but ex parte against Griffin, .to eradicate and annul to his prejudice a payment made, by him twenty-two months before on executions returned finally satisfied one year before. Griffin is not shown to have , had any notice of that, motion,, and is first admonished in April, 1842, by another execution, that his payments were unsatisfactory to the plaintiff; If then the rule of law was, as the plaintiff in' execution insists, viz.: that a defendant in execution can make no safe payment of the-execution to the sheriff in bank-notes, though the’ sheriff tie. content to receive them,, unless the plaintiff shall approve such payment as a discharge of the defendant; yet the rigour of such a rule should, in’, common and equal justice, require thé plaintiff to notify his objection to the defendant, so soon at least as the return of the execution shall ad\ise the plaintiff of the manner of its payment. Here the plaintiff slept upon his collection of the defendant, (implying his approval, (if such approval as to the defendant be necessary,) without notice to the defendant, of any exception for nearly two years after execution, evidencing the objectionable payment was returned; and the plaintiff admits he knew the fact. Must defendants in execution, though not required by the. sheriff,, always pay in specie, or be subject to traps of this sort for ever after, or how; long after?
    We consider this case is not governed in any degree by. the process act of Congress, of May 19, 1828. The motion in this case now pending, and the motion and judgment therein rendered in the court below, to quash the marshal’s return on (he, execution of January 1st, 1840, are predicated on no statute of Mississippi, nor in conformity to any established rule of proceedings, or of decisions. They are.motions of first.impression pursued upon general common law principles. In this view of the subject, I notice the case in 5 Howard, 624. The facts in that case present no proper analogy to this. There the sheriff was also the. defendant. Hence, béside other inconsistencies of his case, he could not avail.himself of our position, that, as defendant, he paid the sheriff, ignorant that the plaintiff entertained objections to the currency in which payment was made. He, in fact, could not pay himself. It is .only by this explanation of the case that the decision can be sustained. The language of the court, then, that “the return was not,a legal return, and the plaintiff was not bound by it, unless he had agreed to receive such money or notes in payment,” is language only properly predicable of a controversy between the plaintiff and the sheriff, or as in that case against the defendant too, he being the sheriff.
    This court, in the case of Gwin v. Breedlove, in referring to the above case in 5 Howard, are not understood to mean more by the reference than to show the case not then applicable as a precedent; while it is submitted, as a fair conclusion, whether the principles adopted in the case of Gwin v. Breedlove do not go to show, this court would not extend the decision of that case beyond its peculiar facts.
    This court, in Gwin v. Breedlove, again declare, as in 10 Wheat., that payment in bank-notes is good, Unless objected to. And they apply the declaration of this rule in a case where payment was to the marshal in bank-notes, .on execution, where-it was in proof that, as-between the marshal and plaintiff in execution, he had been forbidden to retíeive bank-notes; and the integrity of the rule must come to this, or it is no rule as to payments made on execution.
    Such payment, received without, objection by the sheriff, (who undoubtedly has the right to receive payment,) must have some recognition in law, or it is a nullity. And if such payment is a nullity, it is so, whateve? the form of return. A payment, therefore, of an execution in bank-notes, with a return “ satisfied,” will, of course, not prevent the plaintiff from pursuing the defendant with further executions, if he can show that such payment Was- made in banknotes ;' for such payment, if good at all, is good for itself, and not made- good or bad according as the sheriff may report the facts in his return. If it can ever be good, it is only so because it is a discharge lawfully made of the defendant’s debt.
    The reasoning of the court in Gwin v. Breedlove, we think, shows that such payment is-a good, and valid payment, and discharges the debtor in execution, if received without objection by the sheriff; and that such payment, though not binding the plaintiff in his demand against the sheriff, does bar him from further process against the defendant.
    The rule of law is, that whatever the sheriff may lawfhlly take in discharge of an execution} must bar the plaintiff from further execution vs. the defendant, though plaintiff get nothing from the sheriff. 12 T. R. 207; 4 Mass. R. 403 ; 7 T. R. 428 ; 2 Lord R. 1072.
    When a sheriff seizes goods to satisfy an execution, he cannot compel the plaintiff to receive “the goods or property in kind, (except in cases of extent;) arid though he waste the goods, the defendant is discharged. Either plaintiff or,defendant in execution may controvert, with'the sheriff, the truth of his-return.
    The sheriff is estopped- by his own return. - The sheriff cannot be heard to testify in disproof of his own return. 3 Howard, 68.
    And, qumre — Is ' not the rule universal,, that the plaintiff, as to the • defendant in' , execution, is -bound -and precluded by sheriff’s return ?
    Now, it is ,in- proof, by. return ’ on the second execution, of 4th June, 1840, that the marshal received $515 30, as balance in full of debt and cosh Whilst this remains true and uncontradicfed, what pretext has the plaintiff for further execution against the defendant ? If the.balance of the- case, in full, for costs and all, have been received by the marshal on the execution, what right has the plaintiff further against the defendant ?
    And-this execution and, its return have not been complained of, have not been quashed, or in any way set aside. If it stands, therefore, for any'evidence,, it is evidence, full- and complete,.to discharge the defendant; as sought for by his motion" in this case.

      Harrison and Holt for Thompson.
    The motion in this case was on behalf of defendant and sureties, to have satisfaction entered on the judgment, and the last execution of fi. fa. which issued, quashed. The plaintiff resists the motion on several grounds. As to the $800 for which a receipt of the deputy marshal (Cook) was produced; dated in November or early.'in December, 1839, it is insisted that this sum cannot be taken in. part discharge'of the execution, because it was collected before-the execution issued, and of course without warrant of law; The officer derived his power solely from the process, and acting befqre its existence, his act was unofficial, could not be obligatory on the principal marshal and sureties, or on the plaintiff. The following authorities are full to the point that money collected by an officer after the return day' of an execution is no satisfaction of it. 4 Rand. 336; 1 Bibb. 608; 5 Littel, 19; 2 J. J. Marshall, 29, 30; 5 Howard, 246. So in 3 Stewart and Porter, 385-388, it Was held that the receipt of money by an officer before an execution issued, was no satisfaction of the fi. fa. which afterwards came into his hands.
    But it is further urged that neither the $800 received in 1839, nor the $200 received in February, 1840, c.an be taken in part payment of.the execution, because these sums were collected, not in money, but in depreciated post-notes of the Mississippi Union Bank, not only without the assent of the plaintiff, but in direct violation of the instructions of his attorneys.
    The command of the process to the officer, was that he should ' cause to be made so many dollars, which in legal estimation are gold, or. silver dollars — the constitutional coin of the United States. The special authority thus given, being matter of law, of which all concerned were bourid to take notice, could not be departed from to plaintiff’s prejudice, without his assent expressed or implied- — neither of which is shown or alleged. This question has been settled repeatedly, by tribunals of the highest respectability. 4 Howard, 404; 5 Howard, 246, 621-624 ; 9 Johns; 261, 262; 1 Cowen, 46; 4 Cowen, 553; 2 J. J. Marshall, 70, 71 ; 2 N. Carolina Rep. 529; Dudley’s Law and Equity R. 356; Martin’s L. R. N. S. 205.
    Inasmuch as the execution process, and the forms of returns upon it as existing in Mississippi are the creatures of the local laws of that state, it is believed that the. decisions of her Supreme Court cited,, should be conclusive of the questions involved..
   Mr. Justice DANIEL

delivered the opinion of the court.

. This court is unable to perceive upon what principle of law' either of the objects sought by the motion of the plaintiffs in the Circuit Court cóuíd have been accorded to them. It cannot be questioned that the defendant in that motion was entitled to the full benefit and operation of his execution, and these were to cause to be made for him of the goods and chattels, lands and tenements, of his debtor, the ■sum of $1740 02 of lawful money of the United.States. With his claim thus solemnly ascertained of record, we are aware of no authority, from any source, which can compel him to commute it, or to receive in satisfaction thereof any other thing which he shall not . voluntarily elect. But' least of all should such an authority be recognised in a quarter more fruitful than any other of abuses in its exercise ; for instance, from the will either of the debtor, or the officer whose position would enable him in some degree to practise' on both creditor and debtor To permit either the debtor or the officer to impose upon the creditor the receipt of depreciated paper in payment, would"be to permit not merely a repeal of the judgment, but a violation, a virtual abrogation indeed, of the contract on which it was founded; for none can fail to perceive the thousand fraudulent devices for profit or favour which the toleration of such a practice would naturally call into action $o defeat the rights of creditors. The courts of justice might thus be made to subserve only the purposes of dishonesty, and be transformed into engines of monstrous wrong. It has been argued in support of this' motion, that banknotes constitute-good'andlawfiil payment if received; that' as the law recognises their circulation, debtors may lawfully tender them in payment, and creditors may lawfully receive them though not legally bound to do so. Frqm these postulates it is then attempted to draw the following conclusions: 1.- That the marshal is the plaintiff’s agent, who by the execution may receive the plaintiff’s debt. 2. That he who may lawfully receive ■ payment, may have a lawful tender of payment máde to him. 3. That if a tender or payment of' bank-notes to the principal, not by him objected to, is a good tender or payment, the like tender or payment to the agent is equally good. This argument, to say the least of it,- is wholly untenable. ’Tis undoubtedly true that the creditor may receive either bank-notes or blank paper in satisfaction .of his debt, for the reason that his power over that debt is supreme, and he may release it without payment of any kind, if he think proper. But the fallacy of the argument here consists in totally misconceiving the situation and functions of-the marshal. He is properly the officer of the law rather than the agent of the'parties, and is bound to fulfil the behests of the law; and this, too without ' special instruction or admonition from any person. If, then, when commanded to levy a sum of money, he make a return that he has not done this, but has of his own mere will' substituted for money depreciated bank-notes, his. return is an admission, on oath, that he has both disobeyed his' orders and transeendéd' his powers,. ■for legally he has no powers save those he. derives from the precept he is ordered to obey. Can it be doubted that upon application from those whose interests are involved in the performance of his duties by the. marshal, it is the right and the duty of the court in such a case to correct the irregularities of its officer, and to- compel him to perform his duty? There is inherent, in every court a power to supervise the conduct of its officers, and the e ;ecution of its judgments and process; Without this power, courts would be whoEy impotent and.useless. The returns of the marshal in this case upon' the final process in his hands, showing the receipt by him of depreciated bank-paper in satisfaction of that process which ordered him to coEect moneys are held to be departures from the performance of his duty as plainly enjoined by the process itself, are deemed therefore iEegal and void, and ought upon the application of the parly injured thereby to have, been .set aside and annuEed by the court. In conformity with the principles herein sanctioned, vye therefore order it to be certified to the judges of the Circuit Court for the southern' district' of Mississippi,' that satisfaction should not be ■ entered on the execution of fieri facias which was sued out in this case on the 4th of June, 1840, in favour of the said Robert Thompson v. the said Thomas Griffin and Hugh-Ervin, for the. sum of $1740 02 with interest and costs; and farther, that the execution of fi.fa., which was sued out against the said Thomas Griffin and Hugh Ervin on the sixth day of November, 1841, should not be quashed; and that the motion of the plaintiff in the Circuit Court Should be overruled

ORDER.

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 oh the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, It is the opinion of this court, that satisfaction should not be entered on the execution offieri facias, which was sued out in this case on the 4th of June, 1840, in favour of the said Robert Thompson against the said Thomas Griffin and Hugh Ervin for the sum of $1740 02, with interest and costs: and farther, that the execution of ji. fa., which was.sued out against the said Thomas Griffin and Hugh Ervin on the 6th day of November, 1841, should not be quashed: and that the motion of the plaintiff in the Circuit Court should be overruled. Whereupon it is now here ordered and ad- ’ judged that it be so certified to the said Circuit Court.


text:
    Buckhannan, Hagan and Co., for the use of George Buckhannan, Plaintiffs, v. William Tinnin, Ralph Campbell, and John G. Andrews, Defendants.
    if the marshal receives bank-notes in discharge of an execution, and the plaintiff sanctións it, either expressedly or impliedly, he is bound by it, and a motion to quash the return ought to be refused.
    This case came up on a certificate of division in opinion, from the Circuit Court of the United States for the southern district of Mississippi.
    Buckhannan, Hagan and Co. recovered a judgment in the court below against Tinnin, and issued a fieri facias on the 16th December, 1839. A part of the money was received in bank-notes, under the circumstances stated in the motion to quash that part of the return, upon which motion the judges were divided in opinion.
    It was as follows:—
    This was a motion made by plaintiff in .the above entitled case, to , quash so much of the marshal’s return on an execution of fieri facias, which issued from the clerk’s office of this court, on the 16th day of December, 1839, in favour of Buckhannan, Hagan and Co., use of George Buckhannan, against William Tinnin, Ralph Campbell, and John G. Andrews, for the sum of $4492 54, with interest from 23d of May, 1839, until paid, together with costs, as is in the words and figures following, to wit:

      “ Received on this execution thirteen hundred dollars, in Union money, 17th February, 1840.”
    And in support of said motion, said execution of fieri facias was read in evidence to the court, which execution offieri facias, together with the'return and endorsements thereon, which were also read in evidence to the court, are in the words and .figures following, to wit-„
    United States of America, Southern district of Mississippi.

    The President of the United States, to the marshal of the southern district of Mississippi, greeting: Whereas, at the May term, 1839, of tne Circuit Cpurt of the United States for said district, George Bucklianñíin, John Hagan, and. Edward Whittlesey, under the firm of Buckhannan, Hagan and Co., for the use'of George Buckhannan, recovered judgment against William Tinnin for the sum of $4492 54, with interest thereon at the rate of eight per cent, per annum from the 23d day of May, A..D. 1839, until paid, together .with costs and charges by said plaintiffs in and about their suit in that behalf expended, whereof the said defendant was convicted, as appears to' us qf record, And whereas, on the nineteenth day of June, A. D. 1839, an execution of. fieri facias issued from our said court, directed to the marshal of said district, for the amount of said judgment, interest, and costs .as aforesaid, which execution was levied on' certain property of said defendant, which property was ..suffered to-remain in possession of said defendant,upon'executing a forthcoming bond according-to law, with Ralph Campbell and John Qr Andrews as security, wbich.said bond was returned to our said court, at the November term thereof, A. D. 1839, by the marshal -'aforesaid forfeited, and thereby has the force and effect of a judgment, according to the statute in such case made and provided, as well against the said sureties as against the defendant to said original execution for said debt, interest and costs. Now, therefore, you are hereby commanded, that of the goods and chattels, lands and tenements, of tHe said William Tinnin, Ralph Campbell, and John G. Andrews, late of your district, you cause to be made the amount of said judgment, interest, and costs, so recovered as aforesaid; also the sum of $89- 67 including’ the costs accrued since the emanation of said execution, and that you have the said moneys before our said Circuit Court, at a term to be held on the first Monday.of May

      next, to render to tire said plaintiffs; and have, also,’then and there this writ.
    Witness the Honourable Roger B. Taney, Chief Justice of the Supreme Court of- the United States, at Jackson, the first [l. s.] Monday of November, A. D. 1839, and in the 64th year of the independence of the United States.
    Issued the 16th day of December, 1839.
    Wm. Burns, Clerk.
    Endorsed. “No security of any kind is to be taken.
    Wm. Burns, Clerk.

      Marshal’s Return.

    Received on this execution thirteen hundred dollars in Union money, 17th February, 1840, and-balance suspended by-order of plaintiffs. W. M; Gwin, Marshal,

    By J. F. Cook, Deputy.

      ■ Fees.
    Com’n $1300 ... $19 00
    |- corn’s on $3282 21 . . . 34 32
    Levy, ent’g and ret’g . . 6 50
    Mileage . . . . . 1 50
    ---$61 32
    It was admitted that the words ■“ Union money,” in ■ said return, signified notes of the Mississippi Union Bank, and that on the 17th day of February, 1840, said notes were worth but seventy-five cents to the dollar.
    Which wás all the evidence offered on the trial of said motion, which motion, was contested by the said William, Tinnin, Ralph Campbell, and John G. Andrews; and on- the question, whether that portion of said marshal’s return, which is in the words and figures following, to wit:
    - “ Received on- this execution thirteen hundred dollars in Union money, 17th February, 1840,” should be-quashed, the judges were opposed in opinion, which is ordered to be certified to the Supreme Court of the United States for decision.
    The cause was submitted upon printed argument by Duncan and Holt, for the plaintiffs in the court below.
    . On a certificate to the Supreme Court, from the judges of the United States Circuit Court for the southern district of Mississippi, that in this case they were opposed in opinion.
    Upon afieri facias from said court in favour of the plaintiffs against' the defendants, dated 16th December,. 1839, returnable on the first Monday in May, 1840, the marshal, on the 17th day ‘of Februaiy, 1840, without the assent of the plaintiffs, received $1300 in notes of the Mississippi Union Bank,- then depreciated 25 per cent.
    The marshal returned that he had received Union money; and the plaintiffs moved to quash so much .of the return; and it was admitted on the trial that the Union money was" bank-notes of the Union Bank, and that those notes were depreciated twenty-five per Cent. The District Court had uniformly, quashed such returns, and the Supreme Court of the state has repeatedly quashed such' returns. The circuit judge, differing in opinion,- brings the question before this court
    Plaintiffs argue that the.marshal had no right to receive .any property in. discharge of the execution, because the process required him to make money. The authority of the marshal was special, and derived from the law of the land, and the defendants and all others had notice of the-extent of the powers delegated by the law to the officer; and .if -he took any thing but dollars, which in legal intendment musti be gold and silver, he was abusing his trust and acting without authority.. The marshal was bound to bring into court the 'dollars, not property.
    Plaintiffs rely on the following authorities: 4 Howard, 404; 5 Howard, 246, 621-624; 9 Johns. 261, 262; 1 Cowen, 46; 4 Cowen, 553; 2 J. J. Marshall, 70, 71; 2 North Carolina Rep. 529; Dudley’s Law and Equity R. 356; Martin’s L. Acts, 205.
    Upon the manner, of executing process, and the forms of process and returns, and their effects-in any state, the decisions of the Supreme Courts of such state are entitled to great Weighty if. not conclusive.
   Mr. Justice DANIEL

delivered the opinion of the court.

The principles ruled in the case, of Thompson v. Griffin and Ervin as those which define the duties and should govern the conduct of the marshal in levying executions committed to his hands, have been here,again considered and approved. They would be decisive also of the case now under consideration, but for two,points of difference between this and the case of Thompson v. Griffin et al. These two points- arise, 1st, upon the .time intervening between the return of the marshal and the plaintiff’s motion, as tending, to show an acquiescence by the plaintiff; and, sécondly, upon the additional evidence in this case amounting to proof of approbation or sanction by the plaintiff,- express op - implied, of the conduct of the marshal. In Thompson v. Griffin et al. application was made to the court at the earliest practicable period to set aside the marshal’s return, and-there was throughout no fact or circumstance tending to show a recognition, by the party, or a moment’s acquiescence by him in the irregularity complained of. In the present case, the return of the marshal showing die receipt by him of the depreciated bank-notes bears date on the 17th February, 1840; the motion to quash was made in May, 1842. Thus an interval of more than two years was permitted to elapse between the return and the motion; a period during which the party must be presumed to have been cognisant of Ihe return, a public and official proceeding to.be found amongst the files and records of the court to- which access might at all times have been had. If this fact stood alone,, .unassociated with and unexplained by any other, it would of itself imply at least, on the -part of the plaintiff, laches and negligence in the prosecution of .his interests, if not an assent by him to the acts of the officer. This fact of time, however, is by no means solitary or isolated in the evidence in this cause. The language of the return certainly imports no objection by the plaintiff or by any other to the receipt of the $1300, or to the medium in which they were collected: so far from -this, when taken altogether, that language strongly implies, if it does not directly declare, that the plaintiff, or whosoever he was that took control of the matter, approved of the proceeding so far as it had gone, and objected only to a collection of the residue of the execution at that time. It shouk] not be lost sight of either, in construing this language, that no exception to any one.kind of medium, or preference for any other, is indicated in the inhibition as stated; it is a simple direction to proceed no farther. It cannot be objected to the return in question, that it is the act or declaration of the officer whose conduct in making it is impeached. Although the act of that officer, it is a sworn return, and must stand until falsified. It is introduced by the plaintiff himself in support of his motion; is indeed the only evidence he has adduced to sustain it: - he relies on this return, and in so doing must take it entire; he cannot be permitted to garble it.' The return must be received as stating the truth. It must be received in all its parts; and if so, it comes (especially when viewed in connection with the interval between the dates of that return and of the motion in this case,)-on the part of the plaintiff, an acquiescence if not a direct sanction, which, at this day, this court is unwilling to disturb. Great wrong might, by so late an interference, be visited upon the officer, who may have been réposing upon the conduct of this plaintiff; and the danger of a result like this is enhanced by the total absence of any thing like proof to show that the plaintiff ev.er refused to receive the amount collected by the'marshal, and may not have actually recéived and applied it to his own use, or at what rate of valúe if so received. This court is of the opinion upon the. case certified to them¿ that the return of the marshal of the 17th of February, 1840, should not, under the facts disclosed in'this case, be quashed.

ORDER.

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 on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, It is the opinion of this court that the return of the marshal of the 17th of February, 1840, should not, under the facts disclosed in this case, be quashed. Whereupon, it is now here ordered and. adjudged by this court, that it be so certified to the said Circuit Court.