Page:United States Statutes at Large Volume 2.djvu/409



The marshal is bound to serve a subpœna in chancery as soon as he reasonably can; and he will, in case of neglect, be answerable to the complainant, who may have sustained a loss in consequence of his neglect. Kennedy v. Brent, 6 Cranch, 187; 2 Cond. Rep. 345.The court will not dictate to the marshal what return he shall make to process in his hands; he must return it at his peril; and any person injured by it, may have his legal remedy for the return. Wortman v. Conyngham, Peters’ C. C. R. 241.The return of the marshal to a writ, cannot be traversed in an action between the parties to the suit in which the writ issued. Wilson v. The Executor of Hurst, Peters’ C. C. R. 441.An officer of the United States, who has levied a sum of money on an execution in favour of the United States, to whom the United States are indebted for fees of office in a sum greater than the amount of the execution, has a right to retain it by way of set-off; and on a motion made on the part of the United States to commit the officer for failure to pay over the money so levied, he will be permitted to show that the United States are indebted to him: and if this be shown, it is sufficient cause why he should not be attached. United States v. Mann, 2 Brockenb. C. C. R. 9.A marshal is liable upon his official bond, for the failure of his deputy to serve original process; but the measure of his liability is the extent of the injury received by the plaintiff, produced by such negligence. If the loss of the debt be the direct legal consequence of the failure to serve the process, the amount of the debt is the measure of damage; but the mere failure to execute the process, does not, in itself, necessarily infer the loss of the debt to the plaintiff, by the negligence of the officer, because the plaintiff might sue out other process, on the failure of the officer to execute the first process. The question, whether the loss of the debt was or was not the direct legal consequence of the negligence of the officer, is a question of fact, depending on circumstances, of which the jury must judge. United States v. Moore’s Administrators, 2 Brockenb. C. C. R. 317.Where a writ of capias ad respondendum, comes to the hands of a deputy marshal, who arrests the debtor, and the debtor thereupon pays to the deputy the amount of the debt for which he was sued, and the officer discharges the debtor from custody, and returns the writ, “debt and costs satisfied,” this is not an official act which binds his principal. The deputy marshal is a mere ministerial officer, and he has no right to adjust the debt, and make himself responsible to the plaintiff. He is bound to pursue the mandate of the writ, and that requires him to arrest the debtor, and take bail. The discharge of the debtor from custody, without taking bail, is indeed a misfeasance in office, for which his principal, the marshal, is responsible; but he is only responsible for the injury done to the plaintiff. The return of the deputy, shows that no bail was taken; and if by taking out other process, the plaintiff could have secured his debt, which is a fact to be determined by the jury; the loss of the debt to the plaintiff, is not the necessary legal consequence of the conduct of the deputy, and no injury, in a legal sense, is done to the plaintiff thereby. Ibid.Where a decree directs an officer of the court to sell property, “and bring the proceeds of sale into court,” and the sale is on a credit of one, two, and three years, and bonds are given for the payment of the instalments, these bonds are the immediate proceeds of sale. As a matter of convenience, they may be permitted to remain in the hands of the officer; but as matter of strict right, the creditor may require that they shall be brought into court. Wallis v. Thornton’s Administrators et al. 2 Brockenb. C. C. R. 422.Where bonds are made payable to the marshal of a court, he has a right to collect them. In such case, the marshal must be considered as a trustee for the creditor. Query. Whether the direction to take bond implies, that it shall be taken to the marshal, rather than to the creditor? Where bonds are taken, not to the marshal and his successors, but to J. P., marshal, &c., his executors, administrators, and assigns, could his successor, in the event of the marshal being changed before the money is paid, act on these bonds without an assignment? Ibid.By the 69th section of the, the goods or merchandise seized under that act, are to be put into custody of the collector, or such other persons as he may appoint for that purpose, no longer than until the proper proceedings are instituted under the 89th section of the same act, to ascertain whether they are forfeited or not; and as soon as the marshal seizes the goods under the proper process of the court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future orders of the court. Ex parte Jesse Hoyt, Collector of the Port of New York, 13 Peters, 279.By the statute of Indiana, the marshal on a replevy bond is required to take one or more sufficient freehold securities, and if freehold security be not taken, the marshal is liable. Bispham v. Taylor, 2 M‘Lean’s C. C. R. 355.If the sureties be not freeholders, however ample at the time they may have been considered, the marshal is liable. In this respect the statute must be pursued. Ibid.To examine the county records, is not an unreasonable duty on the marshal. Ibid.Where the marshal takes insufficient bail for the appearance of a defendant, he is only answerable for the actual injury sustained by the plaintiff. In such a case the insolvency of the defendant may be shown in mitigation of damages. Ibid.But where a judgment is replevied, good freehold security must be taken for the payment of the judgment. If insufficient security be taken, the marshal is liable. Ibid. given, or which may hereafter be given by the marshal of any district, for the faithful performance of the duties of his office, shall be filed and recorded in the office of the clerk of the district court or circuit court, sitting within the district for which such marshal shall have been appointed, and copies thereof, certified by the clerk, under the seal of the said court, shall be competent evidence in any court of justice.

. And be it further enacted, That it shall be lawful, in case of the breach of the condition of any such bond, for any person, persons, or body politic, thereby injured, to institute a suit upon such bond, in the name and for the sole use of such party, and thereupon to recover