THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Mississippi. McFarland had recovered a judgment against one Passmore for the sum of $9,763.10, and on the 6th of July, 1839, issued a fieri facias. On the 1st of November, 1839, the execution was levied upon sundry pieces of property by the marshal. On the 20th of December, 1839, a venditioni exponas was issued, to which the marshal made the following return: 'The within named property was sold on the 27th day of January, 1840, and I received in payment therefor, on that day, the sum of nine thousand dollars in the post notes of the Mississippi Union Bank, which are herewith returned. Received, also, on the same day, the balance of the execution from the defendants, in the same kind of money, which is likewise herewith returned. 'WM. M. GWIN, Marshal. Per J. F. COOK, Deputy.'
The opinion of the court was delivered by: Mr. Justice McKINLEY delivered the opinion of the court.
'May 22d, 1840. Received of Wm. M. Gwin, marshal, the sum of five hundred and fourteen 15/100 dollars, being the amount of my commissions, I having refused to receive the balance belonging to the plaintiff, as the same was tendered me by Mr. Gwin in Union Bank of Mississippi post notes, in which kind of money he says and returns that it was collected.
'WM. R. T. CHAPLAIN, Pl'tff's Att'y.'
At November term, 1841, McFarland, by his counsel, moved the court for a judgment against Gwin for the amount due on the original judgment, with interest at the rate of eight per cent. from the 14th of May, 1839, to the 27th of January, 1840, and for interest upon the aggregate sum at the rate of thirty per cent. per annum, from the 22d of May, 1840, until paid.
The motion was submitted to the court upon the following agreed case, viz.:
(The writs and returns were stated, and then the agreement continued thus:)
'And it was proved that the money was demanded on the 22d day of May, 1840; also, that at that date the Union post notes were at forty per cent. discount.
'The defendant proved, that on the demand he tendered the post notes of the Mississippi Union Bank, which were refused by the attorney of the plaintiff. He also proved, that from August, 1838, when the Mississippi Union Bank went into operation, until about the middle of February, 1840, the post notes of that bank constituted nearly the entire circulating medium of the state. That they had been treated as cash in all business transactions during that time. That they were habitually and ordinarily received by the sheriffs throughout the state in satisfaction of executions, and in payment of property sold under them. That the marshal had been accustomed, during all that time, to collect the post notes of said bank upon executions; and that the attorneys of the court, and plaintiffs in executions, had always, without objection, received such notes from the marshal as money. That on the 27th day of January, 1840, the day of sale, the post notes of said bank were worth five or six per cent. less than specie, and were worth more than they had previously been. That about the middle of February, 1840, they suddenly depreciated in value, and continued to decline until the 22d May, 1840.
'The above was all the evidence in the case.
Upon this statement of facts, the court were of opinion that judgment should be entered for the defendant. To which opinion of the court, the plaintiff, by his counsel, ...