2 La. 277 | La. | 1831
delivered the opinion of the court.
The ancestor of the plaintiffs, the defendant and several others, became sureties of one Gibbes, who was appointed paymaster to the First Regiment of Infantry in the army of the United States. Suit was brought on this bond, and judgment rendered ~igainst the principal, and sureties.-
Various grounds of defence have been presented; but the opinion we have formed on one of them, renders an examination of the others unnecessary.
The judgment already alluded to, was signed on the 7th of April, 1820. On the 5th of October, 1826, a writ oí fieri facias issued against all the defendants, and, on the same day, came into- the hands of the marshal. The 10th of December of the same year, it was returned into court,, with the following endorsement: “ Received, 5th October, 1826. Served on W. W. Montgomery, same day, as one of the executors of the late R. L. Rochelle, one of the sureties. Stayed by agreement of the Attorney General J. W. Smith. Returned 10th December, 1826. (Signed) John Nicholson, United States’ Marshal.”
To sustain the allegation of payment, the plaintiffs introduced the following document:
“ The United States vs. W. Gibbes et al. — 1269.—Amount of judgment, $ 10,000, 6 per .cent, interest, from the 2d of January, 1829.
“The United States vs. W. Gibbes et al. — 1270.—Amount of judgment, $10,000, 6 per cent, interest, from 2d of January, 1819.
In these two cases — Nos. 1269 and 1270 — there was made from the estate of R. L. Rophelle, one ef the securities, the sum of $ 14913 13 cents, for principal, interest and costs; which costs amount to the sum of $ 372 49 cents: the same was made in the years 1826 and 1827. — (Signed) John Nicholson, U. S. M. — New-Orleans, April 14, 1830.”
As it appears from the certificate of the marshal, on the writ of execution, that nothing had been done on it at the time it was returned into Court, except serving, it on the
We have looked into the Statutes of the United States, to see whether they conferred power on the marshals to receive money on behalf of the government, except in cases where writs of execution are placed in their hands, and we are unable to find any provision which vests there with authority to do so. In all the enactments, relating to them, their pecuniary responsibility is contemplated to arise from the execution of process intrusted to them.
On general principles, a sheriff, or marshal, is no further ° . . . . , . the agent oí a plamtin m execution, than that which he derives from the writ placed in his hands. He represents the parj.„ for n00ther purpose. And the instant it is returned into court, or the retnrn day expires, the authority of the officer to enforce the judgment, or receive the money in discharge of it, also expires, unless he has previously made a jevy. in which case, the law permits him to sell the goods •> x ° he has seized. In the instance before us, the marshal received the money after the return of the writ into court, and subsequent to the day on which it was returnable ; and }t does not appeal- he had made any levy on it, while it was . rr in his possession.
It is not shewn the United States has sanctioned this act of their officer, nor that the usual proceedings have followed the receipt of the money, from which their ratification of it can be presumed.
•An act of Congress requires the marshal to make a return to the agent of the treasury, within thirty days from the commencement of the several terms of the courts of the United States, of the proceedings which have taken place upon all writs of execution, or other process placed in their hands, where the United States is a party. Another act re
As the plaintiff’s, therefore, have not shewn they paid to-a person authorized to receive the money on behalf of the government of the United States, they have not established a right of action against the defendant.
It is, therefore, ordered, adjudged and decreed', that the judgment of the District Court be annulled and reversed; and it is further ordered and decreed, that there be judgment against the plaintiffs, as in case of nonsuit, with costs, in both courts.
