§ 250. It is a general rule of law that, in appointments and removals by the president, when the removal is not by direct discharge, but merely by operation of a new commission, the virtue of the old commission ceases only when a sufficient notice of the new commission is given to the outgoing officer. Duration of Commissions,* 6 Op. Att'y Gen'l, 87.

§ 251. The president cannot make a temporary appointment to fill a vacancy not happening during a recess of the senate; thus, if a vacancy happens during a session of the senate, and no regular appointment is made, a temporary appointment cannot be made during the ensuing recess. Case of the District Attorney,* 7 Am. L. Reg. (N. S.), 786.

§ 252. When an appointee has received a commission from the president, taken the oath of office, and given the requisite bond, the present incumbent is superseded and his removal is complete. United States v. Bank of Arkansas, Hemp., 460.

§ 253. The office of minister to Venezuela by the adjournment of congress, without the senate having acted upon the nomination of a person as such minister, by the operation of the third section of the act of March 2, 1867, known as the tenure of civil office act, passes into "abeyance" as described and defined in that section. Whether the office subsists and is vacant, or the office itself is abrogated while this " abeyance" continues, is a question of verbal rather than of substantial distinctions. Case of the Office of Minister to Venezuela,* 12 Op. Att'y Gen'l, 457.

§ 254. When a vacancy happens in an office during the recess of the senate, and the senate fails to act upon an appointment made at its next session, but adjourns without action, such office remains in abeyance till filled by appointment by and with the consent of the senate, and the president alone has not the right to fill such office during its abeyance. Ibid.

§ 255. Where an office was created and took effect during a session of the senate, and a subsequent session of congress passed without the office being filled, held, that the president could not make a valid appointment to such office in the recess of the senate. Schenk v. Peay, 1 Dill., 267; 1 Ch. L. N., 363; 10 Int. Rev. Rec., 54.

§ 256. Vacancies in offices known to exist during the session of the senate cannot be filled by executive appointment in the recess of that body. Hence, where Florida and Iowa were admitted as states while the senate was sitting, upon a subsequent adjournment the president had no authority to appoint district judges, attorneys and marshals, having failed to take action within the proper time. Appointment of Judges, etc., for Florida and Iowa,* 4 Op. Att'y Gen'l, 361.

SUMMARY

IV. UNITED STATES MARSHAL.

Deputy marshal, § 257.- Money coming to hands of deputy, § 258.- Acts after expiration of term, § 259.

§ 257. A deputy marshal is an officer of the court, amenable to its jurisdiction for malfeasance in office by summary order or attachment for contempt. The marshal is personally answerable, under the terms of rule 41 of the supreme court and of the rules of the district court, to pay moneys attached by him forthwith into court, and the responsibility of the deputy is no less stringent. The Bark Laurens, §§ 260–66.

§ 258. If money comes properly, in the course of his official duties, into the hands of a deputy marshal, the marshal is immediately liable for it. Ibid.

§ 259. A marshal cannot, after he is removed from office, sell lands levied on by him before his removal, but the removal is not completely effected till notice is actually received by him. All sales made by him previous to such notice are valid; all made after such notice are void. Bowerbank v. Morris, § 267.

[NOTES.-See §§ 268-333.]

THE BARK LAURENS.

(District Court for New York: Abbott's Admiralty, 508-518. 1849.)

STATEMENT OF FACTS.- The Bark Laurens was libeled for being engaged in the slave trade, and an application was made to require the United States marshal and his deputy to pay into court $20,000 in specie found on board. Opinion by BETTS, J.

An order was granted by the court on the 21st inst., on motion of the United States attorney, that the marshal of this district forthwith pay into

The

court the sum of money attached by him in the above-entitled cause. hearing of the matter was deferred at the instance of the marshal until yesterday.

The order of the court was served on William H. Peck, chief deputy of the marshal, and, concurrently with the motion against the marshal, the district attorney moves for an order that the said deputy pay the aforesaid money into court, or that an attachment issue against him. It is objected on the part of the marshal that no proof is made of personal service on him of the order of court, and, on the part of the deputy, that no order has been granted directing him personally to pay the money into court.

§ 260. Practice in obtaining an attachment to bring a party before the court to answer upon matters touching a civil suit.

In order to lay a foundation for a peremptory attachment, it is incumbent on the applicant to show that his preliminary proceedings have all been strictly correct. United States v. Caldwell, 2 Dall., 333. But the same rigor is not necessary to obtain an attachment to bring a party before the court to answer upon matters touching a civil suit. In such cases, the first proceedings may be by order that the accused party show cause why he should not be punished for the alleged misconduct; or an attachment may be issued to bring him before the court to answer for the misconduct (2 R. S., 536, § 6), and the practice of the state court governs this court when not otherwise regulated by its own specific rules. Circuit Ct. Rules, 102; Dist. Ct. Rules, 340. The material question is whether a proper cause is shown for the interposition of the court against the marshal or deputy, by process of attachment in the first instance, or by an order that they show cause why an attachment for contempt of court, because of misconduct in office, shall not issue against them.

Thus far the cases of the marshal and deputy have been considered as depending upon a principle common to both. Upon the facts brought out, however, by the depositions read in court, it seems proper to separate them at this point, and to dispose of each case on its special circumstances.

It appears that a monition and attachment against the bark Laurens, her tackle and apparel, furniture, appurtenances, guns, and goods and effects found on board, and $20,000 in specie, was delivered to the marshal on March 15, 1848. He deputed William H. Peck, J. S. Smith, Joseph Thompson, or either of them, to execute the process, and the same day it was served by Smith and Thompson by the arrest of the vessel and the specie. The specie was taken by Mr. Thompson to the Mechanics' Banking Association in this city, and left there subject to the order of Eli Moore, the marshal, and, as Mr. Thompson deposes, on special deposit, according to his understanding.

The deputy, Peck, states in his affidavit that the specie attached was estimated at $18,992, and no more, consisting of $1,000 in silver, and several kegs of doubloons and half doubloons,- gold pieces of a foreign currency. The $1,000 in silver were afterwards by his direction placed to his credit by the cashier, and the gold coin was sold and the proceeds also passed to his credit in the bank. He says he has disbursed a portion of these moneys for the official services of the office, and that the total sum he has received in his official capacity, including these moneys, amounts to $133,000, or thereabouts, and that he has disbursed and expended for and on behalf of the marshal during that period the sum of $126,000, or thereabouts, leaving about $7,000 in his hands, which he states he is ready to account for and pay over to the mar

shal. He farther says he resigned his office of deputy marshal on the 23d inst. The resignation was made after these proceedings were initiated and notice thereof had been served on him.

On these facts the counsel for Mr. Peck takes the following objections to the competency of the court to enforce an order, or issue an attachment against him:

That if the moneys in the cause came to the hands of the deputy, they were in judgment of the law received by the marshal, and the deputy is not answerable for them by summary order of the court, nor by suit at law. That the remedy of the parties interested in the moneys must be taken against the marshal alone. That a deputy marshal is not an officer of the court amenable to the authority of the court by way of attachment for misconduct or malversation in his office. That Mr. Peck is now no longer deputy marshal and therefore in no way under the supervisory authority of the court in respect to his transactions when in office.

A subsidiary exception is taken that the specie cannot be regarded as money in the hands of the marshal, but only as cargo in his custody for safe-keeping until the final decision and disposition of the cause, and accordingly not subject to be brought into court. A farther point was taken under the terms of the act of congress of March 3, 1817, that an attachment cannot be awarded for not paying the money into court, but only on the refusal or neglect of the officer to pay it into an incorporated bank of the state to the credit of the court.

1. The main defense against this proceeding was placed on the first position, that a deputy marshal is not an officer of the court, in such a sense as to render him directly amenable to its supervision, and subject to attachment for not paying over money received by him virtute officii.

8 261. A deputy marshal is subject to the same summary remedy in respect to moneys held by him officially that the marshal is himself.

Whatever may be the rule at common law in respect to the direct liability of deputy sheriffs to suitors for moneys collected by process of court, it seems to me there is no ground for question under the act of congress of March 3, 1817 (3 U. S. Stats., 395), that a deputy marshal is subject to the same summary remedy in respect to moneys held by him officially that the marshal is himself.

The United States circuit and district courts are directed, by section 1 of the act, to cause all moneys, being subject to their order, to be deposited in bank; and section 2 provides that all moneys which shall be received by the officers thereof in causes pending in court shall be immediately deposited in bank to the name and credit of the court; and section 4 directs that, if any clerk of such court, or officer thereof, having received any such moneys as aforesaid, shall refuse or neglect to obey the order of such court for depositing the same as aforesaid, such clerk or other officer shall be forthwith proceeded against by attachment for contempt. 3 U. S. Stats., 395. If the court were called upon to expound the language of the statute for the first time, there would seem to be no reasonable ground for not giving it its full, plain and natural import, and applying it to every grade of officers carrying into execution the powers of the courts, and receiving moneys under their process or by their direction.

Chief Justice Marshall clearly considered the law as embracing deputy marshals; for in The United States v. Man, 2 Brock., 1, he awarded an attachment against a deputy marshal to compel the payment of money into court, collected

on execution. No question was raised in that case as to the just liability of that officer to this form of procedure. This was in 1822. In 1844 the point was raised in the sixth circuit, and Mr. Justice McLean, on a careful consideration of the statute, decided that the deputy marshal is an officer of the court, and subject to its power as such, and that he may be compelled by attachment to pay over money collected by him virtute officii. The judge remarked that it would be disreputable to the court and to the institutions of justice, if, in such case, the court could not afford a summary remedy against one of its offiIn that case, too, the deputy had received a portion of the money when he had no authority to receive it, the execution having been returned; and the court held he was responsible for it, although the marshal was not. Bagley v. Gates, 3 McLean, 465.

cers.

If the money had come properly, in the course of his official duty, into the hands of the deputy, the marshal would immediately be liable for it. Judge McLean holds that the deputy is no less so for that cause. And it seems to be the rule in Massachusetts, not only that the sheriff is liable for the acts of his deputy done colore officii, but that such liability is consequent upon that of the deputy for the same acts. In Knowlton v. Bartlett, 1 Pick., 275, a deputy sheriff attached money, after the process was functus officio, and embezzled it. The court held the sheriff liable, because the act was done under color of office. The same doctrines are declared by Parsons, C. J., in Marshall v. Hosmer, 4 Mass., 63, and Bond v. Ward, 7 id., 127; and all the cases go upon the assumption of the personal liability of the deputy for the acts for which the sheriff was made responsible. In South Carolina the sheriff has been held liable to attachment for moneys paid a clerk in his office, embezzled by the clerk afterwards. Abercrombie v. Marshall, 2 Bay, 9; Carter v. Ken, id.,

112.

§ 262. The United States possess ample authority to prescribe rules in relation to the collection and disposition of moneys obtained under their process or order, and to compel the observance of such rules by attachment.

Independent of the statute referred to, the courts of the United States, under their inherent powers and their right to regulate their own process, possess ample authority to prescribe rules in relation to the collection and disposition of moneys obtained under their process or order, and to compel the observance of such rules by attachment. Bac. Abr., tit. Attachment, A.; Com. Dig., Day's ed., tit. Attachment for Contempt of Court, note 1; 3 Durn. & E., 351; 2 R. S., 523, § 1. Such rules are prescribed by the supreme court and by this court.

§ 263. The marshal would be personally responsible for failure to pay moneys attached by him forthwith into court; and the responsibility of the deputy is no less stringent.

In my opinion the deputy marshal is an officer of this court, amenable to its jurisdiction for malfeasance in office by summary order or attachment for contempt. The marshal would be personally answerable under the terms of rule 41 of the supreme court, and of rule 158 of this court, for failing to pay moneys attached by him forthwith into court; and the responsibility of the deputy is no less stringent. So, also, under the practice of the supreme court of this state, the sheriff is subject to attachment for not paying moneys collected by him on process to the party, or into court, although no demand is made on him therefor. Brewster v. Van Ness, 18 Johns., 133.

§ 264. Resignation by an officer does not oust the jurisdiction of the court to proceed against him by attachment for misconduct while in office; and this rule applies to a deputy marshal.

2. It is earnestly contended that the resignation of his office by the deputy, on the 23d inst., ousts the jurisdiction of the court over him. This is upon the assumption that the authority of the court, by attachment, cannot be exercised over any one except he be at the time an officer of the court. This doctrine is correct as to executory acts. The court could have no power to compel the deputy to resume his office, or to proceed hereafter in the execution of his duties. But this principle does not touch that of the rightful authority of the court in respect to acts and omissions of its officers while acting as officers. The power of the court to afford a remedy against sheriffs by attachment, after they leave office, for malversation or neglect of duty in office, is one constantly exercised, and has never been questioned.

In February term, 1810, the supreme court of New York awarded an attachment against a late sheriff, for not returning a fi. fa. delivered to one of his deputies in 1797, to bring him into court to answer on oath to interrogatories. Brockway v. Wilbur, 5 Johns., 356. He was afterwards discharged on account of laches of the party prosecuting, the process having been delivered to a deputy more than fourteen years previously. The People v. Gilliland, 7 Johns., 555. Equally direct are the cases of Brewster v. Van Ness, 18 Johns., 133; The People v. Brower, 6 Cow., 41, and The People v. Evans, 4 Hill, 71. It is presumed the argument would not be advanced, that the marshal, in this case, if the money in question came into his hands, could exempt himself from these summary proceedings by resigning his office. The deputy, as an officer of the court, stands on the same footing. He is compellable to answer to the court for abuse of its process or other contempt of court whilst acting as its officer. The proceeding by attachment does not affect him as an officer, but individually. It is not against him in the character of one now acting in office, but to compel him to complete and carry out his official duties in doing something he had neglected and omitted, and because of malversation, whilst an officer, in retaining in his hands moneys received by him when in office, and by color of his office. The law empowers the court to act directly upon the office of a deputy marshal for misconduct committed by him in office by removing him. This court had drawn an order in execution of that power removing this deputy from office, when informed of his resignation; but that mode of punishment would in no way affect the civil rights and remedies of suitors against him for embezzling their moneys collected by him, nor the power of the court to inflict punishment by way of fine on him for such malconduct.

§ 265. Where foreign coin is seized by a marshal, he must pay it into court; he cannot treat it as cargo.

3. I cannot assent to the doctrine set up in the third point raised in behalf of the deputy, that this specie was merely cargo, which he is not bound to bring into court or deposit in bank. The foreign coins mentioned in the depositions, comprising the large sum in question, were all legal currency under our laws. They were money, the same as coin of the United States mint. By the laws of this state, the sheriff can levy on money or bank bills, and must return and pay them as so much money collected. 2 R. S., 290; Allen on Sheriffs, 159. The case of Knowlton v. Bartlett, 1 Pick., 271, was that of money levied on and embezzled by the deputy sheriff. The process in his hands was a mesne attachment, the same in effect as the attachment and monition issued in this