Benjamin Humphreys, Appellant v. Leggett, Smith and Lawrence

• Decision Date: 01 January 1850
• Parties: BENJAMIN G. HUMPHREYS, APPELLANT, v. LEGGETT, SMITH, AND LAWRENCE
• Court: U.S. Supreme Court

50 U.S. 297 9 How. 297 13 L.Ed. 145 BENJAMIN G. HUMPHREYS, APPELLANT, v. LEGGETT, SMITH, AND LAWRENCE. January Term, 1850

THIS was an appeal from the Circuit Court of the United States for the Southern District of Mississippi. It arose from a former case in this court, McNutt v. Bland et al., reported in 2 Howard, 9.

The facts were these.

On the 6th of November, 1837, Richard J. Bland was elected sheriff of the County of Claiborne, in the State of Mississippi, for the term of two years, prescribed in the constitution of that State.

On the 10th of November, 1837, Richard J. Bland, Benjamin G. Humphreys, and John Grissom, all of that county and State, executed a penal bond, in the sum of $15,000, to Charles Lynch, Governor of the State, conditioned for the faithful execution by Bland of the duties of his office.

On the 30th of December, 1837, a writ of capias ad satisfaciendum was issued, at the suit of Leggett, Smith, and Lawrence, on a judgment obtained by them, as they allege, in the Circuit Court of the United States for Mississippi, against George W. McNider, for $3,910.78, on the 17th of November, 1837; and the said writ was placed in the hands of the Marshal of the United States for Mississippi, who took McNider into custody by virtue thereof, and delivered him for safe-keeping to Bland, as the sheriff of Claiborne County.

On the 12th of December, 1838, an execution was issued, at the suit of the Planters' Bank of Mississippi, on a judgment obtained by the bank in the Circuit Court of Mississippi for Claiborne County, against Hoopes, Moore, and Carpenter, for

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$10,524.44, on the 4th of December, 1838, and the said execution was placed in the hands of Bland, as the sheriff of Claiborne County.

On the 21st of January, 1839, an execution was issued, at the suit of the Planters' Bank of Mississippi, on a judgment obtained by the bank in the Circuit Court of Mississippi for Claiborne County, against Campbell, Pierson, and Moore, for $3,718.78, on the 29th of November, 1836, and the said execution was placed in the hands of Bland, as the sheriff of Claiborne County.

On the 28th of March, 1839, a suit was instituted and declaration filed in the Circuit Court of the United States for Mississippi, in the name of Alexander G. McNutt, Governor of the State of Mississippi, to the use of Leggett, Smith, and Lawrence, against Bland, Humphreys, and Grissom, to recover damages for an alleged breach by Bland of his official bond, in setting McNider at liberty without lawful authority, while their judgment was in full force against him and unsatisfied.

On the same day a summons, in that suit, was issued against Bland, Humphreys, and Grissom, to which the marshal made return, 'Executed on R. J. Bland, personally, on the 5th April, 1839'; no return being made as to Humphreys and Grissom.

On the 20th of June, 1839, an alias summons, in the same suit, was issued against the same persons, with directions to be executed on Humphreys and Grissom only, to which the marshal made return,—'Executed this writ on B. G. Humphreys, personally, on the 14th day of October, 1839; J. Grissom not found in my district. [Signed] W. M. Gwin, Marshal, per John Hunter, D. M.'

At November term, 1839, a plea was filed in the names of the defendants, Bland and Humphreys, in the same suit, denying the plaintiff's right of action, because Leggett, Smith, and Lawrence had failed to comply, in their proceedings against McNider, with the act of Mississippi, which required them to pay or give security for jail fees, and to appoint an agent in the county of Claiborne to receive notice of matters touching the execution, in default of which the prisoner was to be discharged; and further, because, after his commitment, he was regularly discharged therefrom, by a warrant from the judge of probate, under the insolvent laws of the State of Mississippi.

At the same term a replication was filed by Leggett, Smith, and Lawrence, alleging that they had an agent in the County of Warren; that no application was made to them for jail fees, or security therefor; that no notice was given to them of any

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intention or application to discharge McNider; and, further, that McNider, being in custody under process from the Circuit Court of the United States, was not legally discharged.

At the same term a demurrer to this replication was filed, in the names of the defendants.

On the 26th of November, 1839, a discontinuance was ordered, as to the defendant Grissom; the demurrer on behalf of the other defendants was sustained; and judgment was entered in their favor, with costs.

On the 28th of November, 1839, a writ of error to the Supreme Court of the United States was issued by the clerk of the Circuit Court of Mississippi, at the suit of Leggett, Smith, and Lawrence.

On the same day a citation, addressed to 'Richard Bland and Benjamin G. Humphreys, or Messrs. Winchester, Black, & Chaplain, Attorneys of Record,' was issued, signed by 'S. J. Gholson,' one of the judges of the Circuit Court.

On the 20th of May, 1840, a motion was made in the Circuit Court of Claiborne County, Mississippi, on behalf of the Planters' Bank of Mississippi, for a judgment against Bland, as sheriff, and Humphreys and Grissom, as his securities, on the allegation that Bland had failed to return the execution issued at the suit of the bank against Hoopes, Moore, and Carpenter, and the judgment was granted for the sum of $11,775, with $526.22 damages.

On the 25th of May, 1840, a similar motion was made in the same court, on behalf of the same bank, against the same defendants, on the allegation that Bland had failed to return the execution issued at the suit of the bank against Campbell, Pierson, and Moore, and the judgment was granted against Bland and Humphreys for $2,674.75, 'the balance,' it was stated, 'of the said official bond' of Bland.

On the 16th of July, 1840, writs of fieri facias, under each of these judgments, were delivered to the coroner against Bland and Humphreys; that in the first case being indorsed, 'No security of any kind is to be taken.' Under these writs, the estate, real and personal, of Humphreys was levied upon and sold; and the sum of $15,160.39, the proceeds thereof, was paid over by the coroner to the Planters' Bank.

On the 11th of December, 1840, the record in the case of McNutt to the use of Leggett, Smith, and Lawrence, against Bland and Humphreys, was brought into the Supreme Court of the United States, from the Circuit Court of the United States for Mississippi (January term, 1841, No. 43). It consists only of the record of the Circuit Court in the case of Leggett,

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Smith, and Lawrence v. Bland and Humphreys, together with the writ of error and citation. The citation is indorsed, 'Service on the defendants, accepted, Nov. 28, 1839. Geo. Winchester, for defendants.'

The appearance is general,—for defendants,—'Walker,'

Nothing appears to have been done at that term with the case.

At January term, 1842, the case was reached, and ordered to the foot of the docket.

At January term, 1843, on motion of Mr. Jones, for the plaintiff in error, the court granted leave to submit it on printed arguments.

At January term, 1844, the case was argued.

On the 30th of January, 1844, it was adjudged to be reversed, with costs, and remanded, with directions to enter judgment for the plaintiff.

On the 31st of January, 1844, Mr. Jones suggested the death of R. J. Bland, and moved that the writ of error stand against the survivor.

On the 12th of March, 1844, it was ordered that the mandate should direct judgment to be entered against the survivor. See 2 Howard, 28.

On the 1st of _____, 1844, a mandate was issued reciting the judgment; and also that, 'whereas in the present term of January, 1844, the death of Richard J. Bland having been suggested, it was ordered by this court that this cause stand against Benjamin G. Humphreys alone, as the survivor'; on consideration thereof, it was 'ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that the said plaintiff recover against the said defendant, Benjamin G. Humphreys, $64.85, for his costs therein expended, and have execution therefor'; and it was further 'ordered and adjudged that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to that court to enter judgment for the plaintiff, against Benjamin G. Humphreys alone, as the survivor.'

On the 2d of November, 1844, the mandate of the Supreme Court having been filed in the Circuit Court of the United States in Mississippi, the defendant, Humphreys, asked leave to file a plea, puis darrein continuance, in which he set forth the judgments obtained against him in the Circuit Court of Claiborne County, on account of the failure of Bland to execute the writs in the cases of the Planters' Bank v. Hoopes, Moore, and Carpenter, and the Planters' Bank v. Campbell, Pierson, and Moore; and his own payment thereof, to the full amount

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of his bond, as surety for Bland under executions issued by virtue of those judgments. The court, however, refused to admit the plea, on the ground that it was not competent for it to do any thing in that action but obey the mandate of the Supreme...