43 U.S. 244 (1844), Griffin v. Thompson

Citation:43 U.S. 244, 11 L.Ed. 253
Party Name:THOMAS GRIFFIN AND HUGH ERVIN v. ROBERT THOMPSON.
Case Date:February 28, 1844
Court:United States Supreme Court
 
FREE EXCERPT

Page 244

43 U.S. 244 (1844)

11 L.Ed. 253

THOMAS GRIFFIN AND HUGH ERVIN

v.

ROBERT THOMPSON.

United States Supreme Court.

February 28, 1844

OPINION

UPON a certificate of division from the judges of the Circuit Court for the southern district of Mississippi.

This was a motion made by Thomas Griffin and Hugh Ervin to have satisfaction entered on an execution of fieri facias, which issued from the clerk's office of the court against them on the 4th day of June, 1840, in favor of Robert Thompson, for the sum of $1,740.02, with interest thereon at the rate of 8 per cent. per annum, from the 7th day of November, 1839, until paid, together with costs. And also to quash an execution of fieri facias which issued against them,

Page 245

in favor of said Thompson, on the same judgment, on the 6th day of November, 1841.

In support of this motion, the plaintiffs below read in evidence first, an execution of fi. fa. numbered 874, which was sued out of the court against Griffin in favor of Thompson on the 1st day of January, 1840, returnable on the 1st Monday of May ensuing, for the sum of $1,740.02 and the costs, this being the amount of a judgment rdcovered in the court on the 7th day of November, 1839. Upon this execution was endorsed the return of the marshal, dated May the 4th, 1840, setting forth the levy of that process on the 25th of March, 1840, on certain subjects of property, the execution of a forthcoming bond by Griffin with Ervin as surety for the delivery of the property at the day and place of sale, and the forfeiture of the bond by the failure of the obligors to comply with its condition. Accompanying this return is a receipt in these words:

January 2d, 1840. Received on this execution one thousand dollars in post-notes of the Mississippi Union Bank.

WM. M. GWIN, Marshal.

By his deputy, JNO. F. COOK.

The plaintiffs next produced in evidence, their forfeited forthcoming bond with the execution of fieri facias sued thereon, in favor of Thompson on the 4th of June, 1840, returnable to the 1st Monday of November with the following endorsements and returns thereon, viz.:

Endorsement on Fi. Fa.

No security of any kind is to be taken. This execution is entitled to a credit of one thousand dollars, paid 2d January, 1840, in Union post notes. See marshal's return on fi. fa. No. 874, to May term, 1840.

(Signed) WM. BURNS, Cl'k.

Marshal's Return.

Made on this case four hundred dollars, Nov. 3d, 1840. Received balance of this case, in full for costs, &c., say five hundred and fifteen 30/100 dollars.

WM. M. GWIN, Marshal,

By W. L. BATTO, Dept.

Nov. 3d, 1840.

They then read in support of their motion the execution of fieri facias sued forth against them in favor of Thompson, on the 6th day of November, 1841, which execution is the same that the plaintiff in the court below moved to quash. Upon it is the following endorsement:

Page 246

Endorsement.

This execution is entitled to a credit of $803.47, paid 3d November, 1840, on fi. fa. No. 451, to November term, 1840. No security of any kind is to be taken for balance.

W. H. BROWN, Clerk.

Marshal's return, 'stayed by supersedeas', received April 1, 1842.

A. MILLER, Ml.

By dept. J. S. GOOCH.

They then read in evidence to the court the following receipts which were proved to be signed by, and in the handwriting of, John F. Cook, who at the date of said receipts, and before, was a deputy of William M. Gwin, marshal of the southern district of Mississippi, which receipts are in the words and figures following, to wit.:

Received of Thomas Griffin the sum of eight hundred dollars, to be applied to part payment of an execution obtained vs. him at the November term, 1839, of Circuit Court United States as security for I. Griffin, which amount I am to credit said execution with.

W. M. GWIN, Marshal.

By his deputy, JNO. F. COOK.

December 10th, 1839.

Received of Thomas Griffin the sum of two hundred dollars in Union Bank money, to be applied to a certain execution I hold vs. said Griffin, or I am to return the said money to the said Griffin.

JNO. F. COOK.

February 17th, 1840.

The said sums of $800 and $200, mentioned in said receipts, constituting the $100 in post-notes of the Mississippi Union Bank, returned by the marshal as received on 2d of January, 1840, on execution of fieri facias herein-before referred to, dated 1st January, 1840.

They also read in evidence to the court the following additional receipts, to wit.:

Thompson

v.

Griffin and Surety.

Circuit Court U.S. fi. fa. to Nov. term, 1840.

Received of Thomas Griffin in the above stated case, the sum of four hundred dollars in Louisiana money.

November 3d, 1840.

W. M. GWIN, Marshal,

Per deputy, JNO. F. COOK.

Received of Thomas Griffin the sum of five hundred dollars,

Page 247

to be applied to the payment of an execution, in the hands of the marshal, ofThompson v. Thomas Griffin and sureties.

WM. M. GWIN, Marshal,

By his deputy, JNO. F. COOK.

November, 1840.

The said Robert Thompson then, in opposition to said motion, read in evidence to the court, the judgment pronounced at its November term, 1841, quashing so much of the return of the marshal made on the execution of fieri facias numbered 874, which issued on the first day of January, 1840, as stated that he has 'received on said execution one thousand dollars in post notes of the Mississippi Union Bank,' which judgment is in the words and figures following, to wit.:

'Robert Thompson

v.

Thomas Griffin.

Motion by the plaintiff to quash that part of the marshal's return on fi. fa. No. 874, to May term, 1840, which is as follows: 'January 2d, 1840. Received on this execution one thousand dollars in post notes of the Mississippi Union Bank.'

'Motion sustained and said marshal's return on said fi. fa. quashed, and an alias fi. fa. ordered to May term, 1842.'

The said Thompson then introduced Joseph Holt as a witness, who being sworn, stated that he was one of the plaintiff's attorneys of record, who obtained the said judgment of $1,740.02 against said Thomas Griffin, at the November term, 1839, of the court; and that as the attorney of record of the said plaintiff, (Robert Thompson,) he had full authority to collect said judgment, and to control the executions which might issue thereon; that supposing the execution on said judgment when issued would come into the hands of the said 'Jno. F. Cook,' deputy marshal; he had a conversation with him a short time after the judgment was rendered, say some time in the month of November, 1839, in which he notified the said Cook distinctly, that good money would be required to be collected on said judgment, and that he must receive no other kind of money on the execution, when it should come into his hands. That he saw said Cook several times during the ensuing winter, but that he (Cook) never mentioned to him that he had made any collection on said judgment. That the first knowledge or intimation witness had of the receipt of the $1,000 in post-notes of the Mississippi Union Bank,

Page 248

mentioned in the return of the said Cook on the execution as collected 2d January, 1840, was in the month of May, 1840, when going into the marshal's office at Jackson, Mississippi, he found the said execution had just been returned, with the receipt of the $1,000, in post-notes of the Mississippi Union Bank, endorsed thereon as aforesaid.

Witness at once refused to receive said post-notes from the marshal in part satisfaction of said execution, and has ever since refused, and still refuses to receive them. Witness further stated, that at the time referred to, (May, 1840,) said post-notes had greatly depreciated in value, and were not worth more than fifty cents to the dollar, and that on the 17th of February, 1840, said post-notes were worth but seventy-five cents to the dollar. That he immediately entered a motion to quash said return of the said deputy marshal, (Cook,) which motion was sustained by the court at its November term, 1841. Witness further stated that in a conversation he had held with said Thomas Griffin, he (Griffin) had stated that the $800 mentioned in said receipt, dated 10th December, 1839, and the $200 mentioned in said receipt, dated 17th February, 1840, constituting together the $1,000 returned as made on 2d January, 1840, in 'post-notes of the Mississippi Union Bank,' were paid by him to said John F. Cook, deputy marshal as aforesaid, at times mentioned in the said receipts respectively, in post-notes of the said Mississippi Union Bank. It was also in proof that, on the 10th day of December, 1839, the post-notes of the Mississippi Union Bank were current in the state of Mississippi, and were generally received by the sheriffs and marshal unless instructions to the contrary were given by plaintiffs or their attorneys. It was also admitted that Griffin had no actual notice of the instructions given by the plaintiff's attorney in this case to said John F. Cook, deputy marshal. This was all the evidence offered either in support or in opposition to the plaintiff's motion. Whereupon on the question whether satisfaction should be entered on said execution of fieri facias, which was sued out on the 4th of June, 1840, in favor of said Robert Thompson v. Thomas Griffin and Hugh Ervin for the sum of $1,740.02 with interest and costs as aforesaid; and also on the question whether said execution of fieri facias which was sued out against the said Griffin and Ervin on the 6th of November, 1841, should be quashed, the judges were opposed in...

To continue reading

FREE SIGN UP