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 jugment in which cases these defendants are liable.'

To this plea the plaintiffs demurred, to which there was a joinder.

tion the court overruled, and the defendants excepted.

The plaintiffs then offered Hughes as a witness, which the defendants objected to, as he was one of the defendants in the motion; which cbjection the court overruled, and permitted Hughes to be introduced as a witness; to which the defendants, with the exception of Hughes, excepted.

Hughes then testified, that he was attorney of the plaintiffs; that at the return term of the venditioni exponas he went to the office of the marshal, and demanded the money on the same of Mr. Hunt, the office deputy of Gwin. Hunt said the money was not made; that the property mentioned in the venditioni exponas had been sold to William H. Shelton, who had promised to pay the money for it, but had failed to do so; and that he had not the money to pay on said venditioni exponas; that he did not want any motion against the marshal for said money, and wished a fieri facias on the judgment of the plaintiffs, for the benefit of the marshal. Hughes also proved that he had called on Gwin and told him he wanted the money; and this being all the evidence on the motion, the court gave judgment against Gwin and his sureties as above mentioned. To all which proceedings of the court, as well as the rendition of the judgment, the defendants excepted.

The causes of error assigned by the counsel for Gwin were that the court below erred in overruling the demurrer on the part of Gwin and his sureties, in sustaining the demurrer of the plaintiffs below, in admitting the bond, in admitting Hughes as a witness, and in rendering the judgment.

The case was argued by Mr. Bibb for the plaintiff in error, and Mr. Johnson for the defendant in error.

Mr. Chief Justice Taney delivered the opinion of the court:

It appears by the record, that this was a The court below sustained the demurrer, summary proceeding, by motion in the Circuit with leave to plead over, which the defendants Court of the United States for the Southern declined; and on proof of the plaintiffs, it ap- *District of Mississippi, against Gwin, [*10 peared, to the satisfaction of the court, that on late marshal of the district, and Yerger and the 14th November, 1840, a writ of venditioni Hughes, the sureties in his official bond, for exponas was issued against Crozier and others, the default of the marshal in omitting to levy for the sum of $2,970.39, by which the mar the money upon a writ of venditioni exponas. shal was commanded to sell the property in This summary process was according to the the writ mentioned, to satisfy the debt, inter-provisions of a statute of Mississippi regulat9*] est and costs; that said writ came to the ing proceedings upon executions in the courts hands of the marshal in due time, and upon of that State, and which was supposed, it the same he voluntarily and without authority omitted to levy the money aforesaid, and that payment of the said money, due to the plain tiffs on said execution, was by them, since the return of the said execution, demanded of Gwin; and it also appearing that Gwin gave an official bond, with Yerger and Hughes, his securities, the court therefore gave judgment against Gwin, Yerger, and Hughes, for the amount due on the execution, with interest at the rate of 30 per cent. per annum, from the 1st May, 1841, until paid, and costs of the motion.

The bill of exceptions set out the proceedings on the motion, the venditioni exponas bond by Gwin and his sureties; to the reading of which bond the defendants objected, which objec

seems, to have been adopted by the courts of the United States, when sitting in the State. The defendants in error recovered a judgment against the marshal and his sureties jointly, in this summary way, for $2,920.30, with interest at the rate of thirty per cent, per annum from the day on which the venditioni exponas was returnable.

It is unnecessary at this time to state particularly the provisions of the statute of the State, or to examine how far these provisions can be enforced in a court of the United States. For the subject was fully considered in the case of Gwin v. Breedlove, 2 How. 29, and the decision in that case is conclusive upon the case before us.

In the case referred to, the court held, that,

so far as the statute of Mississippi authorized | fendants, as executors of Beverly Daniel, late a summary process against the marshal himself | marshal, and at May Term, 1843, a verdict to enforce the payment of the debt, interest, was found for the plaintiffs, subject to the and costs, for which he was liable by reason of opinion of the court upon the following cases his default, it was adopted by the Act of Con- stated: gress of 1828. But that the courts of the Unit- Beverly Daniel being in his lifetime marshal ed States could not enforce the payment of a of the District of North Carolina, certain exepenalty imposed by the State law, in addition cutions, at the instance of the United States, to the money due on the execution. And in from the District Court of Newbern, came to the same case, the court further held, that such the hands of one of the deputies of the said summary proceedings against the sureties of a marshal, who, in the name and on behalf of his marshal would be repugnant to the Act of Con- principal, made false returns upon some of gress of April 10th, 1806; and that if the plain-them, and imperfect and insufficient entries on tiff in the execution sought to charge the sure- others. After the death of Daniel, this action ties for the default of the marshal he must pro- on the case was brought against the defendants, ceed regularly by action, and obtain his judg- his executors, to recover damages for the said ment in the manner and form pointed out by false and insufficient returns; and it is con that law. tended, on the part of the defendants, that the action will not lie, and is not sustainable against them as executors, and it is agreed by the parties that judgment shall be rendered for the plaintiffs upon the said verdict, if the court shall be of opinion that such action is sustainable; otherwise, the said verdict to be set aside, and the said action to be discontinued.

The judgment against the marshal and his sureties is, therefore, clearly erroneous. And if the proceeding had been against the marshal alone, it could not have been sustained for the excess of interest awarded over and above the legal rate. For this excess is evidently imposed as a penalty for the default.

The judgment must therefore be reversed.
Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here 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 11*] that this cause be, and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law and justice, and in conformity to the opinion of this

court.

THE UNITED STATES, Plaintiffs,

V.

JAMES and JOHN G. DANIEL, Executors of Beverly Daniel, late U. S. Marshal.

Cause of action does not survive in North Carolina as against marshal's executor for false and insuflicient return of deputy.

An action on the case will not lie against the executors of a deceased marshal, where executions had been placed in the hands of the marshal, and false returns made on some of them, and im

perfect and insufficient entries on others.

The rule respecting abatement is this: If the person charged has received no benefit to himself at the expense of the sufferer, the cause of action does not survive. But where, by means of the of fense, property is acquired which benefits the tes tator, there an action for the value of the proper

ty survives against the executor.

As to the form of action, none will lie, at common law. against an executor, where the general Issue is "not guilty."

HIS case came up from the Circuit Court

North Carolina, on a certificate of division in opinion between the judges thereof.

The judges being divided in opinion, the cause came up to this court upon a certificate of such division.

The cause was argued by Mr. Clifford (Attorney-General) on the part of the United States, and submitted on the record by Mr. Badger on the part of the defendants. *Mr. Clifford made two points: [*12 1st. That the cause of action survives against the executors.

2d. That an action on the case is an appropriate remedy under the laws of North Carolina, which furnish the rule of decision on this point.

1st. The rule respecting abatement is now nearly confined to that laid down by Buller, viz., that where property is concerned, the action does not abate by the death of the party. Cowper, 371.

The distinction between the cause and the form of action must be borne in mind. The difficulty in this case must have arisen with regard to the form. The record is very imperfect, and does not show whether the rights of property were involved or not. But they were so in fact, and I will assume it to be so. The testator was certainly liable in his lifetime, and I only contend that the cause of action survives where the estate of the testator has been benefited and is therefore responsible. It must have been understood in this case that the deputy-marshal had made the money. The bond of the marshal covers the acts of his deputies under the Judiciary Act, and therefore the law presumes the money to be in the hands of the principal. It makes no difference whether the estate of the marshal has been benefited in point of fact or in presumption of law. It is equally responsible in both. He has his remedy against the deputy, and the law presumes that he will right himself. I assume, in this case, that the money had been made. An action tained. 3 Campbell, 347.

But an action for an escape does not survive, In August, 1841, the United States brought because the estate has not been benefited. To an action of trespass on the case against the de-support these principles, 13 Mass. 454;

Wendell, 29; 1 Pick. 71; 4 Halsted, 173; Com. | the marshal being responsible for such acts, the Dig. tit. Administrator, B. 15.

cause of action survived against his executors. But this is not the case made in the present action. It is an action on the case requiring the general issue of "not guilty." If a liability were shown against the deceased marshal, it could not be enforced against his executors in this form. No action, where the plea must be that the testator was not guilty, can *lie [*14 at common law, against the executor. Upon

The laws of North Carolina furnish the rule of decision whether case will lie, 2 How. 29, and these laws sustain the action. 1 Rev. Stat. N. C. 57. This re-enacts the law of 1799. It may be said that the provision in this, which says suits shall not abate, was in tended only to apply to suits then brought. But there is no good reason for the exclusion of future suits. 3 Hawks, 563; N. C. Re-the face of the record, the action arises ex depository, 529, 205, 226; 2 Haywood, 182; 1 Rev. Stat. N. C. page 443, secs. 1, 2, 3.

Mr. Justice McLean delivered the opinion of the court:

licto; and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender. 3 Bac. Abr. 539.

The provision in the 10th section of the North Carolina statute, "to prevent the abate

The case is brought here from the Districtment of suits in certain cases"-which declares of North Carolina, on a certificate of a division of opinion by the judges, under the act of Congress.

A jury, having been impaneled to try the is13*] sues joined, found for the plaintiffs, and assessed their damages at seven hundred seventy-five dollars and eighty cents. This verdict was taken by consent of parties, subject to the opinion of the court on the following

case:

that an action of trespass on the case, etc. shall not abate by the death of either party— does not affect the above question.

This court think that the action, in the form prosecuted, is not maintainable; and they direct the fact to be so certified to the Circuit Court. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of "Beverly Daniel, being in his lifetime marthe United States for the District of North shal of the District of North Carolina certain Carolina, and on the point or question on which executions, at the instance of the United States, the judges of the said Circuit Court were opfrom the District Court of Newbern, came to posed in opinion, and which were certified to the hands of one of the deputies of the said this court for its opinion, agreeably to the act marshal, who, in the name and on behalf of of Congress in such cases made and provided, his principal, made false returns upon some of and was argued by counsel; on consideration them, and imperfect and insufficient entries on whereof, it is the opinion of this court that others. After the death of Daniel, this action on the case was brought against the de- the action in the form prosecuted will not lie. fendants, his executors, to recover damages fort is thereupon now here ordered and adjudged the said false and insufficient returns; and it by this court, that it be so certified to the is contended that the action will not lie, and it not sustainable against them as executors, and it is agreed by the parties that judgment shall be rendered for the plaintiffs upon the said verdict, if the court shall be of the opinion that such action is sustainable; otherwise, the said verdict to be set aside, and the action to be discontinued." And on a motion being made for judgment, the opinions of the judges were opposed on the point reserved.

No action will lie against an executor for a personal wrong by the testator. Com. Dig. Administrator, B. Nor does it lie against the executor of a jailer for an escape. Ibid. Waste does not lie against an executor or administrator; nor an action upon a penal statute. So trover is said not to lie against an executor upon a trover and conversion by his testator, though a different form of action will lie for the same cause. Cowper, 371.

If the person charged has secured no benefit to himself at the expense of the sufferer, the cause of action is said not to survive; but where, by means of the offense, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. And it is laid down in Cowper, 376, with respect to the form, that no action survives where the plea of the defendant must be "not guilty," but where the case survives, some other form must be pursued.

If the deputy-marshal, in the misfeasance complained of, received money or property,

said Circuit Court.

LEWIS A. COLLIER, Plaintiff in Error,

V.

JOSIAH STANBROUGH.

Error to State court lies where decision was against title claimed under sale by U. S. marshal--sale of movable property by marshal in Louisiana without appraisement, at first bidding, void.

By the laws of Louisiana. debts which are due to a defendant, against whom an execution has 1ssued, may be seized and sold. But they must first be appraised at their cash value, and if two thirds of such appraised value is not bid, the sheriff must adjourn the sale, and again advertise the property.

This mode of proceeding was adopted by a rule of the Circuit Court of the United States, and was therefore obligatory upon the marshal.

Where the marshal made a sale of some promissory notes secured by mortgage, without an ap praisement, and sold them for less than one third of their amount, the sale was void.

diciary Act, from the Supreme Court for the Western District of Louisiana.

In 1838 David Stanbrough was appointed, by the logical authority in Louisiana, curator of the estate of one Harper, deceased.