delivered the opinion of the court.

The writ of error in this case is prosecuted by the former marshal to reverse a judgment recovered against him by motion in the Circuit Court of the United States for the district of Mississippi. The proceeding in this form, is founded on a law of that state governing sheriffs ; as will be seen by the statement of the reporter.

The first objection raised on behalf of the plaintiff in error is, that it does not • appear on the record, that Breedlove was a citizen of á different state from the defendant; and therefore it is insisted .the court below had no jurisdiction as'betwéen the parties. As this does not appear, in an, ordinary case jurisdiction would be wanting. On the other hand, it is contended that the motion against the ministerial officer of the court for not performing his duty, was an incident; and part of, the proceeding, in the suit of Breedlove against Marsh and others, in which the execution issued; and that no question of jurisdiction can be raised.

The motion for a judgment being a proceeding according to the statute of Mississippi, it is also’objected that Congress by the act of 1806 (ch. 31,) had provided a complete and exclusive remedy on marshal’s bonds by suit; but if it was otherwise; still, the additional remedy furnished by the state law when substituted, must be treated as an independent suit, in like manner as an action on the marshal’s bond, and the residence of the parties be such as to give "the federal court jurisdiction.

These propositions are so intimately blended that it is most convenient to consider them together.

. We think it true beyond doubt, that if the bond had been proceeded on against the marshal and his sureties, it could not have been done by motion, according to the state practice prescribed by the statute of Missis°sippi; but the proceeding must have been accord*35ing to the act of Congress. Yet before the act óf 1806 was passed, and ever since, the common law remedy by attachment has been the • most usual to coerce the marshal to perform his various duties; and among others, to bring into court moneys collected on executions. So in- the state courts, nothing is more common than to proceed by attachment against the sheriff, instead of resorting to a summary motion, for judgment against him by force of a statute, where he withholds moneys collected. The marshal’s bond is for twenty thousand dollars;. the sureties are bound to this amount only; and if no other remedy existed save on the bond, after the penalty was exhausted, he might set the court 'at defiance: the marshal could also be sued in assumpsit,' by the plaintiff in the execution. It has therefore never been true, that a suit on his bond, governed by the acts of Congress, furnished the exclusive remedy as against the marshal himself; and we think that Congress intended by the new process act of. 1828, to add the cumulative ■ remedies, then existing by statute-, in the new states, where they could be made to apply, because they were more familiar to the courts and country, and better adapted to the certain and speedy administration , of justice. In our opinion, the act of Mississippi authorizing a judgment by motion, against a sheriff for failing to pay over moneys collected on execution, to the party on demand, or into court at the return day, was adopted by the act of 1828, and' does apply in a case like the present, as a mode of proceeding in the courts of the United States, held in the district of ■Mississippi; and could be enforced against the marshal in like manner it could be against a sheriff in a state court.

The same facts that justified the judgment against the goods, &c., of the marshal, would have authorized an attachment against his person; operating even more hastily than a capias ad satisfaciendum', founded on a judgment; and therefore no objection to this means of coerción can be. perceived, that did not apply with still more force to-the old mode by attachment. The latter remedy was never-deemed an independent suit, but a means to compel the ministerial officer of the court to perform his duty, so that the plaintiff should have the fruits of his judgmént; and tire same end is attained by the new remedy under the- state law; each, is an incident of the suit between the plaintiff arid defendant to the execution; of which the proceeding against the officer is part; and to that suit the question of jurisdiction must be referred: It follows the officer had no right to raise the question.

*36The next inquiry is, to what extent does the statute of Mississippi apply to the courts of the United States held there ?

It is contended for the defendant in error, that the act of Congress of 1828, did intend, and could only have -intended, to adopt the state law entire; that when the process' and modes of proceeding were adopted, the provision carried with it the penalties prescribed to enforce their performance; to recognise part as governing the practice of the federal courts,, and reject other parts, as not applicable to them, would bréak up the whole system. That so doing' is a delicate, and difficult duty, experience has taught us; it is impossible, however., to do otherwise in many cases. That of Amis v. Smith, 16 Peters 303, was an instance. It also came np from Mississippi. By the laws of that state, the sheriff is commanded to take a forthcoming bond for the delivery of property oh the day of sale, levied on by virtue of an execution; if the bond is forfeited for not delivering the property, it-operates as a hew judgment against-the defendant to the execution* and also against the 'sureties to the bond; and no writ of érror is afterwards allowed to reverse the original judgment. Pursuant' to the laws of Mississippi a delivery bond had been taken by the marshal; it Was forfeited, and then the defendant prosecuted a writ of error to this ' court .to reverse the judgment on which the execution issued. It was held here, that that part of the state law authorizing the delivery bond to be given, was adopted by the act of 1828, and that a new execution might issue on it; but the part cutting-off the writ of error.must be rejected. An other. instance will be given, which is presented by the' statute of Mississippi, on which the present motion against the marshal was founded. The 27th and '28th sects, enacts, that if the sheriff shall make a false-return on an execution or other process, to him directed, for every such offence he shall pay a fine of $500, one half to the plaintiff, and the other half -to the use of the literary fund, recoverable by motion. -If the fact that the return is false does not appear of record, the court -shall immediately empannel a jury to try such fact, and on its being found, proceed to assess the fine.

The recovery of the penalty, could with quite'as much propriety nave been on conviction by indictment as on a summary motion; and -in neither mode can it be plausibly contended that the courts of the United States could inflict the penalty on its marshal; the motion and assessment of the fine, being distinct from thé process and mode of proceeding in the cause of which 'the execution was *37part, on which the false return was made. This being an offence against, the state law, the courts of the state alone cptild punish its commission; the courts of the United States having no power to execute the penal laws of the individual states.

A judgment below, for 25 per cent, damages was given against the marshal for felling, to pay over, the- debt collected; the penalty-amounted to $1750. The motion for. judgment was founded on the 25th section of the act; it declares judgment on motion shall be rendered against the marshal, for .the money collected, with legal interest: and also, for 25 per cent..damages qn the amount.

This is just as much the .infliction of a penalty, as if a fine had been imposed under the 27th and 28th sections for a false-return; and for the -same reasons was beyond the competency of the Circuit Court; and for so much the judgment cannot stand.

We next come to the question wUether the marshal is rendered liable by his return, and the proofs, and pleadings.

By.the state statute he was allowed to contest the fact by pleading to the motion, that he had not received the money. . He first demurred to the written grounds of the motion; being in the nature of a declaration. The demurrer was over-ruled, and the defendant had leave given to plead oyer, He pleaded 1st, That he, did not receive or collect on said execution the moneys specified in. the motion, The 2d plea is to the same effect, but for- the larger sum, including a bill of exchange, about which there is no controversy,

3d, That he received and collected the notes of the Commercial and Railroad Batik of Vicksburg, and the Planter’s Bank of Mississippi, due and payable at said', banks; and which were paying specie on their notes on demand; that is on the 12th day of March, 1839; which notes were collected and received without-any instructions, from the plaintiff or his attorney that gold or silver would be required ; and at a, time when the bank-notes were the current circulating medium; and that the same on the day aforesaid were tendered to the attorney of the plaintiff before the suspension of spdeie payments by the hanks — ail of which , bank-notes he has always been ready, and is yet ready and willing to pay over to the plaintiff. The 4th plea is the same in substance.

On the first two pleas issues were joined to the country: T<>' thé other two, the plaintiff replied — That previous to the reception of the bank-notes, the defendant was instructed that gold and silver would be required upon the execution; and issues were tendered to. *38the country; which were joined on the single point, whether the marshal had been instructed that gold or silver would be required.

Two instructions were asked on behalf of Hie marshal and refused' — First,

“ If the jury believe from- the evidence that bills of exchange and bank-notes were received by the marshal, and not gold and silver, then the jury will find’ the issues on the first and second pleas in favbur of the defendant.”

3d. “And that if they find that the marshal received bank-notes or bills of exchange, and not money in specie, which the plaintiff refused to receive as money, then they'must find the issues for the defendant; as the issue is,.whether he received and collected money, or not.” ^

The 2d instruction asked was given, and need not be noticed.

The return of the marshal was, that he had received on the execution, bank-notes due on demand and payable in specie — on the two banks, named in the return, amounting to $7000 — the subject of the present motion.

No question is, or can be raised, oil the two last issues; they were found against the defendant on the proof, that he had been instructed, that nothing but gold or silver would be received in satisfaction. The merits of the case therefore turn on the two instructions refused; they are referable to the facts giving rise to the instructions; the facts briefly are, that the marshal wastinstructed to collect specie on the execution; he failed to do so, and took .bank-notes from the debtor to the amount of $7000 in lieu of specie. A few days after the .notes were received, one of the banks at which a part of them were payable suspended specie payments, and its- notes thereby became depreciated in value. The instructions 'raise the question, who shall bear the loss: If the officer’s return is treated as a nullify, then it will fall on ftfarsh and others, defendants to the execution; if the marshal’s offer to deliver the notes to Breedlove’s attorney, and his plea of tender had been good, then the execution creditor must have sustained the loss — but failing in these grounds of defence the officer must bear it himsélf.

By the Constitution of the United ’ States (section-ten) gold or silver coin made current by law can only be tendered in payment of debts': Nevertheless, if the debtor pays bank-notes, which are received by the creditor in discharge Of the contract, the payment is .just as valid as if gold or silver had been paid. Had Marsh paid *39his creditor Breedlove in the manner he did the marshal, then there can be no doubt Breedlove could-not have treated the payment as a nullity,' and on this assumption have issued an execution on his judgmént, and enforced payment again in specie.

By the writ of execution the marshal was- commanded to collect so many dollars.; this meant gold or silver of course: And the court of errors and appeals of Mississippi, in the case of Nutt v. Fulgham,(5 How. R. 621,) ordered the return of a, sheriff, like the one before us, to be struck out, on motion of the plaintiff in the suit. That court says: « The return of the sheriff, that he took the Union bank-notes, is not a legal return; and the plaintiff is not bound by it, unless the plaintiff had agreed to receive that kind .of money .or notes in payment; and no such agreement appears.

In the case before us no motion was made, to strike out the return on part of the plaintiff Breedlove; ,nor did the marshal ask leave to alter his return, stating-he had not made the money: the three parties interested, treated the payment as a valid discharge-of the judgment against Marsh; and we think, for the purposes of this motion, at least, it must be so deemed. Gwin, the marshal, did. receive banknotes in payment, and intendéd they should be taken in .discharge of the execution; the record throughout shows he did so receive them — i-and, that they were received as money: Still, he could only pay into court-gold or silver, if required by the execution creditor to do so; and therefore he rah the risk of converting the notes into specie when he took them; having, incurred the risk, the marshal must bear the loss of depreciation. We apprehend this view of an officer’s responsibility who collects bank-notes, is in conformity to the general practice of the courts, and collecting officers, throughout the country.

This court therefore reverses so much of the judgment of. the Circuit Cpurt, as adjudged the plaintiff in error Gwin, to. pay the twenty-five per cent, damages, on the amount recovered against him: — And affirms, the residue of said judgment.

dissented.

I am unable to concur with the majority of the court in their opinion just announced. .’¡Tis my opinion, that the judgment of the Circuit Court- should, have been wholly reversed.

Congress, by express enactment, ’have defined the duties and responsibilities of the marshals, and prescribed the modes in which *40they shall be enforced. These express regulations, designed for the government of the peculiar officers of the federal courts, cannot, I think, be varied or controlled by rules established by the states for the conduct of their respective ministerial agents; but must be of paramount authority.

' The laws' of Mississippi, therefore, denouncing penalties against the misconduct of, sheriffs, and directing the manner of enforcing them, cannot govern this case. Should it be conceded, however, that the laws of Mississippi concerning sheriffs could have effect in this motion against the marshal, it seems obvious, to my mind, that the appropriate remedy under the state law for an act like that com" plained of, has not, in this case, been adopted. The. alleged delinquency in the marshal, made the foundation of this motion, a delinquency identically the same for which a like proceeding is authorized against a sheriff, is the refusal to pay over money actually made and in his hands, and collected in satisfaction of an execution. For such a refusal, a, peculiar penalty, the very same sought' and adjudged by the court in this instance, is provided. By the return of the marshal, relied on in proof by the plaintiff, it is conclusively shown, that the money which the officer was commanded to make, had never been received 5, but that he had received, in part, that which was not money, and which had never been converted into money, and which the plaintiff, in the execution, would never have received in lieu of money. Nay, the oral evidence introduced by the plaintiff was brought in to prove, that, the marshal, in opposition to the plaintiff’s' positive instructions, had received that which was not money, excluding, unonthis.proof as well as upon the return, every inference that money had- been actually received in satisfaction of the process in his hands. A refusal or an omission to levy or to return an execution, the statutes of Mississippi designate as different and distinct offences, and the conduct of the marshal as shown in the proofs, approaches more nearly to either of these than it does to the misfeasance alleged in the notice, and, for which, the court has awarded a penalty against him, although the fact charged is positively disproved by all .{he testimony, as it is also by the plaintiff’s replications to the defendant’s 3d and 4th pleas. But whether or not the conduct of the marshal can in literal strictness be denominated a failure or refusal to levy or to return an execution, it is surely not a failure or refusal to pay ove* money actually levied, and, therefore, the proceeding, under colour of the statute of Mississippi, is not *41the proceeding appropriate to the act of the officer, however that act ■may be characterized. This is, too, á statutory proceeding, and should strictly conform to the power which authorizes it. It cannot be extended either to' modes or objects not -clearly embraced within the terms of that authority. It cannot, therefore, in any event, warrant the judgment now proposed, as that is clearly for a penalty wholly different from the one imposed by the law of Mississippi, for an offence such as is assumed by the court to have been committed in this instance. Surely the law of Mississippi either should or should not govern this'case.

Again, I do not think that the jurisdiction .of the Circuit Court is made out as between the parties to the. judgment. The motion on which it is founded is neither process nor a mode of proceeding in die suit between Breedlove and Marsh and Company, nor can it be deemed an execution or process or proceeding upon or regularly incident to the judgment between those parties. It is a distinct and substantive and original proceeding against a third person no party to the controversy, A right of action is claimed against this third person for his own acts or delinquencies, independently of the contract or controversy between the parties to the judgment. In his character of officer of the court, he would, doubtless, be amenable to the authority it possesses to supervise the conduct of its own officer, and to secure the enforcement of its own judgments; an attachment would, therefore, lie against him; to effect these ends of justice. He would, also, be liable upon his official bond as marshal; because the judicial act confers a right of action thereon, without restriction as to-citizenship, on all persons who may be injured by a breach of the- condition of that bond. But if a farther or different recourse is sought against the marshal, one which may be supposed to arise neither from the inherent power'of the court over its peculiar officer, or its judgments; then- it is presumed that those who-seek such recourse, must show their right as arising out of their character to sue in the federal courts; they must show themselves by regular averment' to be citizens of a state other than that of him whom they seek to implead. The present case closely resembles that of Course et al. v. Stead et ux., 4 Dall. 22, in which it was ruled that the want of a proper description of parties in a supplemental suit was not cured by a reference to the original suit.

The judgment should, I think, be reversed,

*42ORDER»

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 so much of the judgment of the- said- Circuit Court in this- cause as adjudges WiDiam M. Gwin, the .plaintiff in error, to pay 25 per cent, damages thereon be, and the same is hereby reversed and- annulled, and that the residue of the -judgment of the said Circuit Court in this cause, be in all respects, and the same is hereby affirmed.