MCFARLAND V. GWIN, 44 U. S. 717 (1845)

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U.S. Supreme Court

McFarland v. Gwin, 44 U.S. 3 How. 717 717 (1845)

McFarland v. Gwin

44 U.S. (3 How.) 717


A marshal is not authorized by law to receive anything, in discharge of an execution, but gold and silver, unless the plaintiff authorizes him to receive something else.

The case of Griffin v. Thompson, 2 How. 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.

McFarland had recovered a judgment against one Passmore for the sum of $9,763.10, and on 6 July, 1839, issued a fieri facias.

On 1 November, 1839, the execution was levied upon sundry pieces of property by the marshal.

On 20 December, 1839, a venditioni exponas was issued, to which the marshal made the following return:

"The within named property was sold on 27 January,

Page 44 U. S. 718

1840, and I received in payment therefor on that day the sum of nine thousand dollars in the post notes of the Mississippi Union Bank, 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."

"WM. 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 15/100 dollars, being the amount of my commissions, I having refused to receive the balance belonging to the plaintiff, as the same was tendered me by Mr. Gwin in Union Bank of Mississippi post notes, in which kind of money he says and returns that it was collected."

"WM. R. T. CHAPLAIN, Plaintiff's Att'y"

At November term, 1841, McFarland, by his counsel, moved the court for a judgment against Gwin for the amount due on the original judgment, with interest at the rate of eight percent from 14 May, 1839, to 27 January, 1840, and for interest upon the aggregate sum at the rate of thirty percent per annum, from 22 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 22 May, 1840; also, that at that date the Union post notes were at forty percent 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 plaintiff. 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 the 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 the marshal as money. That on 27 January, 1840, the day of sale, the post notes of said bank were worth five or six percent less than specie, and were worth more than they had previously been. That about the middle of February,

Page 44 U. S. 719

1840, they suddenly depreciated in value, and continued to decline until 22 May, 1840."

"The above was all the evidence in the case."



Upon this statement of facts, the court was of opinion that judgment 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.

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