GWINN V. BUCHANAN, 45 U. S. 1 (1846)

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U.S. Supreme Court

Gwinn v. Buchanan, 45 U.S. 4 How. 1 1 (1846)

Gwinn v. Buchanan

45 U.S. (4 How.) 1


A plaintiff has a right to direct a deputy marshal to receive a certain description of money in satisfaction of an execution.

But the deputy marshal then acts as agent of the plaintiff, and not as agent of the marshal.

If, therefore, the plaintiff, when he does this, gives to the deputy marshal other instructions, which are disobeyed, the marshal himself is not responsible, but the plaintiff must look to the deputy.

A judgment was obtained in that court, at May term, 1839, by the defendants in error against Ephraim Gwinn and James Ballance, for the sum of $2,679.88, with interest at the rate of eight percent, from 27 May, 1839, until paid, and costs.

An execution was sued out upon this judgment on 28 June, 1839, and property of the defendants levied upon to the amount due on the execution, which property was suffered to remain in their possession, according to a law of that state, upon their executing a forthcoming bond with sufficient security. This bond was returned by William M. Gwinn, the marshal, at the next term (November term, 1839), "forfeited," whereby the said bond, according to the laws of Mississippi, had the force and effect of a judgment against the defendants in the original judgment, and their securities in the said bond.

Upon this last mentioned judgment, another fi. fa. was issued on 19 December, 1839, returnable to the next term of the court, to be held on the first Monday of May, 1840. This fi. fa. came to the hands of the marshal (the plaintiff in error), and was placed by him in the hands of T. M. Ferguson, one of his deputies, chanrobles.com-red

Page 45 U. S. 2

to be executed. At the May term, the following return was made:

"Satisfied in full on the third day of April, 1840."

"W. M. GWINN, Marshal"

"per T. M. FERGUSON, D. Marshal"

The money was thereupon demanded of the marshal by the attorney for the plaintiffs (who are the present defendants in error), and upon this demand the marshal tendered to him the amount in the following funds -- a Treasury Note of the United States for one thousand dollars, and the balance in post notes of the Mississippi Union Bank, due in May and April, 1840, with fifteen percent added for exchange. These funds were refused by the plaintiffs' attorney, who thereupon moved the court for a judgment against W. M Gwinn, the marshal, for the amount due on the said execution, upon the ground that the money had been collected by the marshal and not paid over on demand.

It appeared, on the hearing of the motion, that the following letter had been addressed by the plaintiffs' attorney to Ferguson, the deputy marshal, while the execution was in his hands.

"March 23, 1840"

"DEAR SIR: In the case of Buchanan, Hagan & Co., use of Wm. Holliday & Co., v. Gwinn & Ballance, we are authorized to receive one thousand dollars in United States Treasury Notes, and the balance in post of the Union Bank, maturing May and April, 1840, adding on the post notes fifteen percent for exchange. This was what Mr. Gwinn proposed to us, and the plaintiff directs us to accede to the proposition, provided the payment be made to us without delay, in order that the funds may be remitted before any further depreciation shall occur. You will place communicate this to the parties at the earliest moment."

"Very respectfully,"

"Your ob't servants,"


It appeared also that the money had been collected by the deputy marshal on 3 April, 1840, in the funds mentioned in the said letter, and tendered to the attorney at May term, 1840, when he made the demand above mentioned; that the deputy marshal did not notify the plaintiffs, or their attorney, of the receipt of the money, and that no demand for it was made previous to the term at which the execution was returnable, before which time the banknotes had suddenly and greatly depreciated, and that Gwinn, the marshal, knew nothing of the instructions given by the plaintiffs' attorney, nor of the collection of the money, until the meeting of the court.

Upon this evidence, the circuit court gave judgment against chanrobles.com-red

Page 45 U. S. 3

William M. Gwinn, the marshal, for the amount of the debt, interest, and costs due upon the judgment of the forthcoming bond. An exception was taken to this opinion of the court, and the present writ of error brought by the marshal upon this judgment against him.


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