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
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: "
" 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
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"
" 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"
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
"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. "