J. B. Gaston, L. G. Pirkle and A. P. Woodward vs. O. P. Fitzsimons et al.
U. S. Circuit Court, Northern District of Georgia,
November 14, 1885.
Bond op TJ. S, Marshal, Suit on by Deputy Marshals for Fees. Liable when. Demurrer. A suit cannot be maintained against a TJ. S. Marshal and the Securities on his bond, for fees of TJ. S. Deputy Marshals, paid over to him. Such claim is against the United States.
Gaston and two other Deputy U. S. Marshals, brought suit against 0. P. Fitzsimons, U. S. Marshal, and the securities on his bond, in the U. S. Circuit Court, for the Northern District of Georgia, claiming that various sums of money were due them for fees earned as such deputies; that said sums of money had been collected by said Fitzsimons from the United States, and that he had failed to pay the same over to them. Defendants demurred to the declarations in said causes, upon the following grounds: 1. That the court had no jurisdiction. 2. That if a liability existed, it was an individual and not official one. 3. That the *117deputies were co-obligors with the Marshal. All of the cases were tried together on said demurrer.
J. C. Reed and Haight & Osborne, attorneys for plaintiffs.
Broyles'& Johnson, Jackson & King, Hopkins & Glenn, R. B. Trippe- and Albert S. Johnson, attorneys for defendants.
Counsel for plaintiffs insisted, that their cause of action arose under section 784 U. S. Revised Statutes, and under the following clause thereof: “In case of a breach of the condition of a Marshals bond, any person thereby injured, may institute in his own name, and for his sole use, suit on said bond etc.”
McCay, J.
Held, that plaintiffs were not injured by the failure of the Marshal to pay the money due, over to them ; that the United States still owed them ; that their claim for fees was against the United States, and was not discharged by a payment to the Marshal; that the ' Government should pay the deputies, then sue and recover on the Marshal’s bond, any sums that might be due the Government, by reason of the Marshals failure to pay over the fees due said deputies.
The court passed the following order in each of the three cases:“That the demurrer be sustained, on the ground that plaintiffs have no right of action against the United .States Marshal, and the sureties on his bond, their claim being against the United States; wherefore it is ordered that this case be dismissed, etc, etc.”