It appears by the record, that this was a summary proceeding, by motion in the Circuit Court of the United States for the Southern District of Mississippi, against Gwin, late marshal of the District, and Yerger and Hughes, the sureties in his official bond, for the default of the marshal in omitting to levy the money upon a writ of venditioni exponas. This summary process was according to the provisions of a statute of Mississippi regulating proceedings upon executions in the courts of that State,-and which was supposed, it 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 a summary process against the marshal himself to enforce the payment of the debt, interest, and costs, for which he was liable by reason of his default, it was adopted by the act of Congress of 1828. But that the courts of the United States could not enforce the payment of a penalty imposed by the State law, in addition to the money due on the execution. And in the same case, the court further held, that such summary proceedings against the sureties of a marshal would be repugnant to the act of Congress of April 10th, 1806; and that if the plaintiff in the execution sought to charge the sureties for the default of the marshal, he must proceed regularly by action, and obtain his judgment in the manner and form pointed out by that law.
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.
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 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.
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