Buchannan, Hagan & Co. v. Tinnin, 43 U.S. 258 (1844)

U.S. Supreme Court

Buchannan, Hagan & Co. v. Tinnin, 43 U.S. 2 How. 258 258 (1844) Buchannan, Hagan & Co. v. Tinnin

43 U.S. (2 How.) 258

ON CERTIFICATE OF DIVISION IN OPINION FROM THE CIRCUIT COURT

OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

If the marshal receives bank notes in discharge of an execution, and the plaintiff sanctions it, either expressedly or impliedly, he is bound by it, and a motion to quash the return ought to be refused.

Buckhannan, Hagan & Co. recovered a judgment in the court below against Tinnin, and issued a fieri facias on 16 December, 1839. A part of the money was received in banknotes, 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 16 December, 1839, in favor of Buckhannan, Hagan and Co., use of George Buckhannan, against William Tinnin, Ralph Campbell and John G. Andrews, for the sum of $4,492.54, with interest from 23 May, 1839, until paid, together with costs, as is in the words and figures following, to-wit: "

Page 43 U. S. 259

" Received on this execution thirteen hundred dollars in Union money, 17 February, 1840."

"And in support of said motion, said execution of fieri facias was read in evidence to the court, which execution of fieri 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 the Circuit Court of the United States for said district, George Buckhannan, 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 $4,492.54, with interest thereon at the rate of eight percent per annum from 23 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 of record. And whereas, on 19 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 G. Andrews as security, which 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

Page 43 U. S. 260

next, to render to the said plaintiffs, and have also then and there this writ."

" WITNESS the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, at Jackson, the first 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"

"[L. S.]"

"Marshal's Return"

" Received on this execution thirteen hundred dollars in Union money, 17 February, 1840, and balance suspended by order of plaintiffs."

"W. M. GWIN, Marshal"

"By J. F. COOK Deputy"

"Fees"

Com'n $1,300 . . . . . . . . . $19.00

1/2 com's on $3,282.21 . . . . 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 17 February, 1840, said notes were worth but seventy-five cents to the dollar."

"Which was 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, 17 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. "

Page 43 U. S. 261

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. 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

Page 43 U. S. 262

by the plaintiff, and secondly upon the additional evidence in this case amounting to proof of approbation or sanction by the plaintiff, express or implied, of the conduct of the marshal. In Thompson v. Griffin, 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 the receipt by him of the depreciated banknotes bears date 17 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 cognizant of the 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 $1,300 or to the medium in which they were collected. So far from this, then 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 should 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

Page 43 U. S. 263

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 reposing upon the conduct of this plaintiff, and the danger of a result like this is enhanced by the total absence of anything like proof to show that the plaintiff ever refused to receive the amount collected by the marshal, and may not have actually received and applied it to his own use, or at what rate of value if so received.

This Court is of the opinion upon the case certified to them that the return of the marshal of 17 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 17 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.