THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi, under the following circumstances.
At May term, 1843, viz. on the 5th of May, the following notice was filed.
To William M. Gwin, late Marshal of the Southern District of the State of Mississippi, and Jacob S. Yerger and Robert Hughes, his securities in his official bond.
Please take notice that on Wednesday, the 24th day of the present month (May), I will move the Circuit Court of the United States for the Southern District of the State of Mississippi for a judgment against you for the sum of twenty-nine hundred and twenty dollars thirty-nine cents, being the amount [of] the plaintiffs' money mentioned in the writ of venditioni exponas, issued from said Circuit Court on the 14th day of November, 1840, in our favor, against Robert G. Crozier, Thomas J. Coffee, and R. S. Hardy, principals, and James J. King and William H. Shelton, securities, for the said sum of twenty-nine hundred and twenty dollars thirty-nine cents, and which said writ commanded the said W. M. Gwin, then marshal, to expose the property therein specified to sale, to satisfy the money aforesaid, and interest, and costs due on said execution; and which execution or writ of venditioni exponas came to the hands of said Gwin in due time, and upon the same said Gwin voluntarily and without authority omitted to levy the money aforesaid. I will also ask said court for a judgment for interest on the sum aforesaid, at the rate of thirty per centum per annum from the first Monday in May, 1840, till paid.
You may attend and oppose said motion, if you think proper.
Your obt. servt.
C. T. & A. BARTON,
May 5th, 1843.
By ROBT. HUGHES, their attorney.
On the 23d of May, the defendants filed a demurrer upon the following grounds, viz.:--
1. There is no law which authorizes the making of such a motion.
2. The citizenship of either plaintiffs or defendants is not set out in the motion, or any part of the record in this cause.
3. If any motion will lie at all in this court against the marshal and his sureties, it must be in the name of the United States for the use of the creditor.
4. The motion does not set out the bond or obligation of the defendants, or in what capacity, or to what extent, or upon what kind of obligation, Hughes and Yerger are Gwin's sureties.
5. The motion does not specify any breach of official duty upon the part of Gwin.
6. The motion does not show when any breach of official duty was committed by Gwin, or that the plaintiffs have been damaged thereby, nor to what extent.
7. The motion does not show or set forth a demand and refusal, upon the part of Gwin, to pay over any money collected by him for plaintiffs.
8. There are many other causes of demurrer, which will be assigned at the hearing.
The court below overruled the demurrer, and Gwin and his sureties were allowed to plead over.
Gwin and his sureties put in a plea, 'for that heretofore, before the entry of this motion against them, or notice that any such motion would be entered, suits had been instituted in this honorable court in favor of the United States of America against these defendants upon the official bond of said Gwin as marshal, for breaches of the condition thereof, for sums of money collected by Gwin, as marshal, and not paid over by him, in amount larger than the penalty of the bond; which suits are still pending undetermined in said court against these defendants, and judgments upon which cases will satisfy and discharge the penalty of said bond; and to the rendition of judgment in which cases these defendants are liable.'
To this plea the plaintiffs demurred, to which there was a joinder.