Crane v. McCoy.

This return clearly shows that no more than seventy-five barrels were delivered to Crane, and that the balance remained in the possession of the marshal, and passed from him into the possession of the receiver. This return of the officer is conclusive of the facts which it sets forth, and its truth can not be collaterally impeached. And it proves that as to 1,099 barrels of the apples, the possession was in the marshal, and not in Crane. And being thus in the hands of the marshal, under legal process, the sheriff had no right to take them under the writ of replevin in his hands.

It is insisted, however, that by operation of the statute of Ohio, upon Crane's giving bond to the marshal, the property replevied passed into the possession of Crane, and was therefore subject to the operation of the sheriff's writ of replevin. On this point no authorities were cited, and it may be presumed there are none to sustain the position. "In the absence of any authoritative decisions to the contrary, I incline to the opinion that after the bond is given and accepted by the officer, there must be a formal delivery of the property by the officer. The return of the officer before referred to, shows only a delivery of seventy-five barrels of the apples. It is insisted in argument, that this partial delivery by the marshal is by implication to be deemed as a delivery of all the apples to Crane, and that the possession thereby passed to him, and was subject to the action of the writ of replevin sued out by Harding, and it is also contended that the giving the delivery bond by Crane, and its acceptance by the marshal, transferred the possession to Crane. The return of the marshal showing possession in him of all the apples, except the seventy-five barrels delivered to Crane, is to be viewed as conclusive of that fact, and the point referred to is not material in the decision upon the question before the court. It was no doubt competent for the marshal to have delivered the entire quantity of the apples in bulk, as they there remained in the warehouse. But was he bound to make the delivery

Crane v. McCoy.

in this way? It occurs to me, that it was in the discretion of the officer in what manner the delivery should be made, and in the exercise of this discretion he was properly controlled by the circumstances of the case. It appears that Crane was prepared to remove the apples to the river landing for the purpose of shipment, and drays were in readiness to take them. The marshal seems to have thought it was his duty to deliver them on the pavement, in front of the warehouse. I am unable to perceive that there can be any legal objections to this mode of delivery, having regard to the facts existing and known to the marshal. These facts warranted the apprehension, that there might be, and probably would be, some interference in the attempt to give the possession to the claimant of the property.

The doctrine that where there is concurrent jurisdiction in courts, the court first obtaining jurisdiction of the subject or person shall retain it, is not controverted, and is too well settled to be disputed. This doctrine applies clearly to the case under consideration. There was a legal possession in the marshal of that portion of the property in question, of which there had been no actual delivery to Crane. That possession could not be rightfully interfered with or disturbed by process from another court; and the property was subject to any order which the court having it in possession, might deem it proper to make, in accordance with law and the usages of courts. The application for the appointment of a receiver is always addressed to the sound discretion of the court to which it is made. As a general rule, such appointment will be made in all cases where the interests of parties seem to require it. The posture of this controversy, before referred to, a conflict existing, with an apprehended violent collision, and a probability of fierce and long continued litigation at law, was a sufficient reason for the appointment of a receiver, and the order for the injunction. But in addition to this consideration, the perishable nature of the property in contestation could not be overlooked. The apples were liable to

United States v. Kershner.

rapid decay, and if they were to be the sport of interminable struggles for possession, and cross actions of replevin, before these could be ended, they would be entirely valueless. Hence, it would seem obviously to be for the interest of all concerned, that they should be withdrawn from the operation of such a warfare, and disposed of in a way most advantageous to all. The order for the appointment of a receiver, who has taken an oath for the faithful discharge of his duties, with the superadded security of a bond, amply secures this object. In the meantime, all the questions of title to this property are reserved until there can be a full and final hearing, and a satisfactory decision settling the rights of the parties. The order of the court requires the proceeds of the property to be placed under its order, and it will be paid to those who establish a legal right to it.

Upon the whole, I see no sufficient reason for dissolving the injunction, or vacating the order for the appointment of a receiver. The motion is therefore overruled.

(CIRCUIT COURT.)

THE UNITED STATES v. ISAAC KERSHNER, WILLIAM MILLS, AND ELIHU THORN.

Where a postmaster in a quarterly return shows a balance in his hands, the postmaster-general may apply the balance reported in a subsequent return to the extinguishment of the previous balance.

And where, in an account current continued for years, the postmastergeneral thus makes the application of balances reported by a postmaster, any deficiency on final settlement due from the postmaster will be chargeable to and appear in the last quarterly account of the postmaster; and unless two years have elapsed from the return of the last quarterly account to the time of bringing suit on the postmaster's bond, the sureties in the bond are not protected from liability by the provision of the act of Congress requiring suit to be brought within two years, or in case of neglect so to sue, the sureties not to be liable.

United States v. Kershner.

Stanley Matthews, District Attorney, for plaintiff.

King & Thompson, for defendants.

OPINION OF THE COURT:

This is an action of debt, brought by the United States against Isaac Kershner, as the principal, and William Mills and Elihu Thorn, as sureties, in the official bond of said Kershner, as the late postmaster at Yellow Springs, in this State. The breach assigned is the non-payment by Kershner of the sum of $499.35, which, it is averred, he owes the United States for moneys officially received by him. Kershner does not appear or make any defense to the action; but his sureties, Mills and Thorn, have pleaded, first, the general issue; and secondly, a special plea, in which it is averred that Kershner, as postmaster, "was at all times for more than two years next before the commencement of this action, in default in not accounting for and paying over to the plaintiff the moneys found due and owing from him as such postmaster, agent, and depository of the post-office department." The plaintiff takes issue on the last-named plea, by a replication denying that the default of Kershner, as postmaster, occurred two years before the institution of this suit.

The only evidence in the case is a duly certified transcript from the books of the auditor of the post-office department, showing the state of the postmaster's account, and exhibiting a balance of $499.35 due from him on March 31, 1859, at which date the account closed and the balance was struck. The first item of charge against Kershner in this account is for a balance due for the quarter ending June 30, 1853; and from that date he is regularly charged with the quarterly balances accruing against him until December 31, 1858, which is the last date in the debit side of the account. The account is carried on continuously from the date of the first entry to the close of the account, when the balance was finally ascertained. The

United States v. Kershner.

credit side of the account is made up of various sums paid by the postmaster between September 22, 1855, and March 31, 1859.

On the part of the sureties, it is insisted that the account current shows that Kershner was in default for a part of the quarterly balances charged against him as postmaster for two years or more prior to the commencement of the suit; and that by the neglect of the postmaster-general to bring suit for such balances within two years after they accrued, the sureties are released from their liability. They rely on sections 31 and 3 of the act of Congress of March 3, 1825, "to reduce into one the several acts establishing and regulating the post-office department." Section 31 makes it the duty of a postmaster to render his accounts, and pay over to the postmaster-general the balance by him due, "at the end of every three months," and failing to do so the postmaster-general is required to bring suit against him. And section 3 of said act, after making it the duty of the postmaster-general to take bond, with approved security, from the postmaster, contains the following proviso: "That if the default shall be made by the postmaster aforesaid at any time, and the postmaster-general shall fail to institute suit against such postmaster and said sureties for two years from and after such default shall be made, then and in that case the said sureties shall not be held liable to the United States, nor shall suit be instituted against them."

The only question in this case arises on the construction to be given to the proviso just quoted. And this involves the inquiry, at what period is the postmaster to be regarded as in default. The present suit was instituted on January 3, 1860; and it is insisted by the district attorney, that as the account current between the United States and the postmaster exhibits an unbroken series of charges against, and credits to, the postmaster from the date of the first item to the close of the account when the final balance was struck, each payment made by the postmaster in the order