46 F. 181 | U.S. Circuit Court for the District of South Carolina | 1891
The plaintiff holds by assignment certain claims of deputy-marshals for services rendered in cases in which the United States was a party. He also holds by assignment pay certificates of witnesses who attended court at the expense of the United States. He has made demand on Ifiythe, late marshal for this district, for payment. Upon bis failure to comply with this demand, plaintiff sues on the official bond of the marshal, seeking to hold the sureties responsible therefor. Blythe has made default, and judgment has been entered against him. The sureties interpose two demurrers raising these questions: Admitting the fact that the marshal has received from the United States the fees earned in the cases in which the deputy-marshals did the service, and in which the witnesses attended court, and the further fact that he has not paid either the deputies or the witnesses, does this constitute a breach of the bond for which the sureties are liable? Second, if this be such a breach of the bond, can the assignee of these claims sustain a suit in his own name?
Is the non-payment of this money on the part of the marshal a breach of his bond? The bond of the marshal to the United States is for the faithful performance of his duties by himself and his deputies. Rev. St. §783. These duties are the execution of all lawful precepts directed to him, and such others as pertain to his office, and to take only his lawful fees. Section 782. It is primarily to the United States, and covers the proper disbursement of all public moneys coming to his hands. It inures for the protection of any person injured by a breach of the bond. Section 784. This undertaking is to receive a strict interpretation, and is not to extend by implication beyond the fair scope of its terms. U.
The second question raised on demurrer is, can the plaintiff, assignee of the witness’ certificates, maintain an action in his own name on the marshal’s bond? The demurrer admits the fact that the money has been received by the marshal in his official capacity for these witnesses, and has not been paid by him. The claim is based on a chose in action, and, like any other chose in action, can be assigned. It is not a claim against the government, and therefore does not come within the prohibition of section 3477 of the Revised Statutes. It is a claim against the marshal. Being assignable, the assignee can maintain'an action upon it. This action, under the Code of Civil Procedure in South Carolina, adopted in this court, must be in the name of the real party in interest, the assignee. The courts of the United States have jurisdiction in suits on a marshal’s bond, as in a case arising under the laws of the United States. Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. Rep. 106. Under section 784, suit can be brought by the party injured by the breach of the marshal’s bond, “in his own name and for his sole use.” It would be a narrow and technical construction of this remedial statute to confine the right to sue to the original holder of the claim. The words, “in his own name and for his sole use,” mean that, instead of suing in the name of the United States, the obligee of the bond,'a private party can sue in his own name; and that the benefit of the suit will inure, primarily, not for all persons injured, but for him solely. Besides this, a person purchasing a claim upon such a certificate relies upon the performance of his duty by the marshal, — a performance secured by his bond. If the marshal refuse to pay him, a breach of the bond is committed, and he is injured thereby. I am of the opinion, therefore, that the action, to this extent, can be maintained by the plaintiff. Let the verdict be prepared in accordance with this opinion.