The Adolph

| U.S. Circuit Court for the District of Rhode Island | Nov 15, 1851

CURTIS, Circuit Justice.

The duty of the marshal to pay this money into the registry of the court, as soon as he had received it, is clear. He had no power to adjust the account with the salvors, or pay them, or retain anything for his own services; these are all matters to be passed on by the court; and under its direction, and only by its authority, can any payments be made or allowances had. It may be added, that it is the duty of the court to see that its officer does pay into the registry money which he has collected for that purpose; and although the court cannot have .the necessary information to act upon its own motion, it certainly ought not to be very rigid in its requisitions of authority, when a suggestion that its officer is in fault in this respect is made. We deem it sufficient for this particular purpose, that M. Gouraud is the vice consul of Prance; and that French citizens are interested in these proceeds.² It is true, he had not received his exequatur when he filed this petition; and if this were a suit instituted by him, and depending on his official character when brought, it must fail. But we do not consider the proceeding at all analogous to a suit, or even to a petition for the execution of a decree. It is rather in the nature of a suggestion, made in writing to the court, that one of its officers has not discharged his official duty; and, although the person making such suggestion may not have had any official or personal connection with the subject when first made, If he has now, when the matter is actually presented to the court, sufficient authority to make it, the court feel bound to listen, and allow it to have effect. Upon this suggestion and representation, we find, by the answer of the late marshal, that he did receive this money on account of the proceeds of the sale of a part of the salvage property; and, although we have no doubt he thought himself justified in retaining it, and did not intend to depart from his duty, he must be now required to pay it into the registry of the court

Order.

That Burrington Anthony, lately marshal of the United States for the district of Rhode Island, forthwith pay into the registry of this court, in the cause wherein Caleb Williams and others were libellants against the ship Adolph and cargo, the moneys received by him on account of two certain promissory notes, given by one Edward Dexter, the purchaser of part of the property libelled in the said cause; and all claims of the said Anthony, for any just allowances on account of the said moneys, or otherwise in the said cause, be referred to Francis E. Hoppin, Esq., to report thereon to the court. And all parties in interest, or their legal representatives, may appear before the said assessor, and be heard in the premises. And all further questions are reserved until the coming in of the said report.

Entered by order of the court

2 The Invincible, 1 Wheat. [14 U. S.] 239; The Anne, 3 Wheat. [16 U. S.] 439; The Divina Pastora, 4 Wheat. [17 U. S.] 52; The Bello Corrunes, 6 Wheat. [19 U. S.] 156; Bank of Washington v. Peltz, [Case No. 952;] Rowe v. The Brig, [Id. 12,093.]