Lammon v. Feusier

Decision Date17 March 1884
Citation4 S.Ct. 286,28 L.Ed. 337,111 U.S. 17
PartiesLAMMON and others v. FEUSIER and another, Ex'r
CourtU.S. Supreme Court

C. J. Hillyer, for plaintiffs in error.

N. M. Stone, for defendants in error.

GRAY, J.

The original action was brought in the circuit court of the United States for the district of Nevada, by Henry Feusier, a citizen of California, against George I. Lammon and three other persons, citizens of Nevada, upon a bond given by Lammon, the marshal of the United States for that district, as principal, and by the other defendants as his sureties, and conditioned that Lammon, 'by himself and by his deputies, shall faithfully perform all the duties of the said office of marshal.' It was alleged, in the declaration, and found by the court (trial by jury having been duly waived) that Lammon, while marshal, and while the bond was in force, having in his hands a writ of attachment on mesne process against the property of one E. D. Feusier, levied it upon the goods of the plaintiff, a stranger to the writ. On the question of law, whether the taking of the plaintiff's property upon a writ of attachment against another person constituted a breach of official duty on Lammon's part, for which his sureties were liable, the circuit judge and the district judge were opposed in opinion, and so certified. The plaintiff having died pending the suit, final judgment was rendered for his executors, in accordance with the opinion of the circuit judge, and the defendants sued out this writ of error.

The bond sued on was given under section 783 of the Revised Statutes, which requires every marshal, before entering on the duties of his office, to give bond with sureties for the faithful performance of those duties by himself and his deputies; and this action was brought under section 784, which authorizes any person, injured by a breach of the condition of the bond, to sue thereon in his own name and for his sole use. The question presented by the record is whether the taking by the marshal, upon a writ of attachment on mesne process aginst one person, of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable. The marshal, in serving a writ of attachment on mesne process, which directs him to take the property of a particular person, acts officially. His official duty is to take the property of that person, and of that person only, and to take only such property of his as is subject to be attached, and not property exempt by law from attachment. A neglect to take the attachable property of that person, and a taking, upon the writ of the property of another person, or of property exempt from attachment, are equally breaches of his official duty.

The taking of the attachable property of the person named in the writ is rightful; the taking of the property of another person is wrongful; but each, being done by the marshal in executing the writ in his hands, is an attempt to perform his official duty, and is an official act. A person other than the defendant named in the writ, whose property is wrongfully taken, may indeed sue the marshal, like any other wrong-doer, in an action of trespass, to recover damages for the wrongful taking; and neither the official character of the marshal nor the writ of attachment affords him any defense to such an action. Day v. Gallup, 2 Wall. 97; Buck v. Colbath, 3 Wall. 334. But the remedy of a person whose property is wrongfully taken by the marshal in officially executing his writ is not limited to an action against him personally. His official bond is not made to the person in whose behalf the writ is issued, nor to any other individual, but to the government, for the indemnity of all persons injured by the official misconduct of himself or his deputies; and his bond may be put in suit by and for the benefit of any such person.

When a marshal, upon a writ of attachment on mesne process, takes property of a person not named in the writ, the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ issued. Freeman v. Howe, 24 How. 450; Krippendorf v. Hyde, 110 U. S. 276; S. C. 4 SUP. CT. REP. 27. The principle upon which those decisions are founded is, as declared by Mr. Justice MILLER in Buck v. Colbath, supra, 'that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control, for the time being, and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises.' 3 Wall. 341. Because the law had been so settled by this court, the plaintiff in this case failed to maintain replevin in the courts of the state of Nevada against the marshal, for the very taking which is the ground of the present action. Feusier v. Lammon, 6 Nev. 209.

For these reasons, the court is of opinion that the taking of goods, upon a writ of attachment, into the custody of the marshal, as the officer of the court that issues the writ, is, whether the goods are the property of the defendant in the writ or of any other person, an official act, and therefore, if wrongful, a breach of the bond given by the marshal for the faithful performance of the duties of his office.

Upon the analogous question whether the sureties upon the official bond of a sheriff, a coroner, or a constable are responsible for his taking upon a writ, directing him to take the property of one person, the property of another, there has been some difference of opinion in the courts of the several...

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