United States, Plaintiffs In Error v. Tench Ringgold

• Decision Date: 01 January 1834
• Citation: 33 U.S. 150,8 Pet. 150,8 L.Ed. 899
• Parties: UNITED STATES, PLAINTIFFS IN ERROR v. TENCH RINGGOLD
• Court: U.S. Supreme Court

33 U.S. 150

8 Pet. 150

8 L.Ed. 899

UNITED STATES, PLAINTIFFS IN ERROR v. TENCH RINGGOLD.

January Term, 1834

ERROR to the circuit court of the United States for the county of Washington, in the District of Columbia.

This was an action of assumpsit, instituted by the United States in the circuit court, to recover the sum of three hundred and forty-five dollars, money of the plaintiffs; alleged to have been received by the defendant as marshal of the District of Columbia. The defendant pleaded non assumpsit, and issue was joined thereon. The counsel for the plaintiffs and defendant, submitted the following statement, subject to the opinion of the court on the law and facts.

This is an action of assumpsit, brought to recover the sum of three hundred and forty-five dollars, money of the plaintiffs, which came to the hands of the defendant as marshal of the District of Columbia. Upon the settlement of the defendant's accounts as marshal, with the treasury, he claimed an allowance and credit for the sum of eleven hundred and eleven dollars and two cents (see account marked A), being the amount of his poundage fees on a capias ad satisfaciendum against John Gates, at the suit of the United States, and upon which Gates was arrested by the defendant as marshal, and committed to jail, and afterwards discharged by order of the president of the United States. (See statement marked B.) It is agreed that this claim was presented to the accounting officers of the treasury before the institution of this suit, and disallowed.

Account A.

United States, Dr. June term, 1819.

To cepi ca. sa. v. John Gates; released from jail by

order of the president of the United States . 50

Writ and return ..................... 14

Poundage fees on first $26.67, at 7 1/2 per cent. .. 2.00

Ditto. on residue, $36,946 at 3 per cent. . 1108.38

---------

$1111.02

T. RINGGOLD, M.D.C.

Statement B.

District of Columbia, county of Washington, circuit court, December term 1818. United States v. John Gates, Jun. January 5, 1819. Judgment for sixty-five thousand dollars,

current money, damages, to be released on payment of sixty-three thousand five hundred and ninety-seven dollars and seventy-three cents, or such other sum as may hereafter be certified by the accounting officers of the treasury—costs eleven dollars and eighty-two cents. Upon which judgment execution (ca. sa.) was issued to June term 1819, and returned by the marshal with the following indorsements thereon:

Certificate of second auditor of amount due.

Treasury department, second auditor's office, 27 March 1819. I certify, that on settlement of the account of John Gates, Jun., late paymaster of the United States light artillery, on the 29th October 1818, a balance of thirty-six thousand nine hundred and sixty dollars was found due by him to the United States, which said balance is now standing against him on the books at this office.

WILLIAM LEE, 2d Auditor.

Return of marshal.

Cepi, released by order of the president of the United States, herewith returned.

T. RINGGOLD, Marshal.

President's order of discharge.

To the marshal of the District of Columbia. Whereas John Gates, Junior, of the county of Albany, in the district of New York, is confined and held in custody in the prison aforesaid, in pursuance of a certain judgment and execution obtained at the suit of the United States; and whereas it appears to my satisfaction that the said John Gates, Junior, is unable to pay the said debt for which he is imprisoned: now, therefore, by virtue of the power and authority vested in the president of the United States by an act of congress, passed the 3d of March 1817, entitled 'an act supplementary to an act for the relief of persons imprisoned for debts due the United States,' I, James Monroe, president of the United States, do hereby authorise you to discharge from your custody, out of the prison aforesaid, the body of the said John Gates, Junior.

Given under my hand, in the city of Washington, this fifth day of March one thousand eight hundred and nineteen, and forty-third year of the independence of the United States.

JAMES MONROE.

The circuit court gave judgment in favour of the defendant; and the United States prosecuted this writ of error.

The case was argued by Mr Butler, attorney-general, for the United States; and by Coxe, for the defendant.

On the opening of the record it was found that the sum in controversy was less than the amount which, according to the act of congress, authorises a writ of error, except on a special allocatur, from the circuit court of the District of Columbia, to this court. The provisions of the law permit writs of error to be sued out without such allocatur, when the sum in controversy amounts to one thousand dollars, and upwards.

The Attorney-General and Mr Coxe requested the court to give a special allocatur nunc pro tunc, as the questions in the case were of great public importance, and were required to be determined, in order to the final settlement of other accounts in which the same principles were involved.

The court, on these representations, gave the special allocatur.

The Attorney-General, for the plaintiffs in error, contended, that the judgment of the circuit court was erroneous, for the following reasons.

1. By the laws of Maryland (to which the acts of congress refer), the defendant, and not the plaintiff, is liable to the sheriff or marshal for his poundage on the service of a ca. sa.

2. Whatever may be the rule in respect to individuals, the United States, under the general terms employed in the acts of congress and of the state of Maryland, and not liable to the officer.

The marshal of the District of Columbia is not entitled to poundage fees, under the acts of congress of 1801 and 1803. By those acts the same fees are given to that officer, as are allowed for similar services by the laws of Maryland. No poundage fees are allowed in a case of this kind, by the Maryland law.

It has been gravely questioned, whether the law of England, which gave poundage fees, was ever in force in Maryland; the best opinions are, that it never was in force in that state, and therefore no right to such fees can exist. No case in which such fees have been allowed, is to be found. The sheriff (and by this same rule, the marshal of this district) is not entitled, in Maryland, to any fees as poundage, unless by the special provisions of some statute.

The statutes of Maryland, in reference to the fees of the sheriff, are those of 1753, 1759.

Upon those statutes there have been contradictory decisions in the courts of Maryland. In 1805 it was decided that the defendant, and not the plaintiff, was liable for the poundage fees of the sheriff, and under the authority of this decision, the circuit court of this district decided differently from their decision in this case.

Afterwards, in the case of Mason v. Muncaster, decided in 1829, the circuit court of the district of Columbia adjudged that the plaintiff was liable to the marshal for such fees.^(a)

^(a) The reporter has great satisfaction in annexing to the report of this case, the opinion of Mr Justice CRANCH, in the case of Mason v. Muneaster, delivered March 12, 1829.

This case comes before the court on a motion to quash two writs of fieri facias, levied on certain lands of the defendant, the sale of which was postponed by agreement of the parties, in order that the opinion of the court might be had, whether the marshal is entitled to poundage fees on levying an execution upon lands which are not sold.

By the act of congress of 27th February 1801, sec. 9, the marshal was entitled to receive the same fees, perquisites and emoluments, as the marshal of the United States for the district of Maryland. By the act of 3d March 1807, the marshal, for services not enumerated in that or some other act of congress, is entitled to such fees as were, on the first Monday of December 1800, allowed by the laws of Maryland to a sheriff for like services. The poundage fee is not expressly given or regulated by any act of congress.

By the stat. West. 1, c. 26, no officer shall take any reward to do his office, but of the king. And by the 29 El., c. 4, no sheriff shall 'receive or take of any person for serving an execution on the body, lands, goods or chattels of any person, more or other consideration or recompense, than twelve pence of and for every twenty shillings that he shall levy or extend, and deliver in execution, or take the body in execution for, by virtue and force of any such extent or execution.' This act does not contain the word poundage. The 14th sec. 3 Geo. 1, c. 15, uses the word 'poundage,' allowed by that act: and (sec. 16) 'for ascertaining the fees for executing of writs of elegit, so far as the same relate to the extending of real estates, and for executing writs of hab. fac. poss. aut seisinam,' it is enacted, 'that it shall not be lawful for any sheriff, by reason or colour of office, or by reason or colour of executing any writ or writs of hab. fac. poss. aut seisinam, to ask, demand, or receive any other or greater consideration, fee, gratuity or reward, than twelve pence of every twenty shillings of the yearly value.' By section 17, reciting that 'it often happens that small sums only remain due upon judgments, but upon executing writs of ca. sa., the sheriff takes for his fees poundage for the whole money for which such judgments are entered,' it is enacted that 'poundage shall in no case be demanded or taken upon executing any writ of ca. sa. or upon charging any person in execution by virtue of such writ, for any greater sum than the real debt bona fide due and claimed by the plaintiff,' under the penalty of treble damages to the party aggrieved; but the statute does not say whether the party aggrieved by the plaintiff or defendant, nor which of them is bound to pay the poundage. The 8 G. 1, c. 25 If there is no decision of the courts of Maryland on the...