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The United States o. Smith et al.

Let this item, then, be allowed.

3. The charge for superintending prisons in Maine is not taxable. There is no act authorizing it, and no order of the Court shown, requiring such an examination by the marshal. Again, there is little foundation for any claim on this account in the general relation and duties of the marshal as to the jails of the States.

He is not the keeper of them. He has no control over them. He neither repairs the jails, nor feeds the prisoners, nor regulates their police. Congress, September 23d, 1789, (1 Stat. at Large, 96,) recommended to the several States to pass laws to receive prisoners for the United States, for a reasonable compensation. And in 1791 and 1821, Congress authorized the marshal to keep his prisoners elsewhere in safety, if the States withheld the use of their prisons. 1 Stat. at Large, 225, and 3 Ibid. 646. So as to the State prisons; we can use them for punishment, paying the expense, and letting our prisoners be employed and treated as the State convicts are.

In point of fact, also, it is stated there is no evidence of actual examination having been made in that instance, justifying in any view so extraordinary and large a claim. This was properly rejected by the District Court, and also the amount claimed for service of a writ from New York, and which is now abandoned by the defendants.

4. The only remaining claim is for commissions on fees, paid to the deputy marshals or assistants in taking the census.

It is not pretended that there is any clause in the act for taking the census, which expressly authorizes this claim, but it rests on the hypothesis of being an act, not enjoined by law, and for doing which when requested, the marshal should be paid a reasonable commission. The commissions of the marshal, by the act of 1792, on payments over to others there designated, is two and a half per cent., and that rate VOL. I.

. 17

The United States v. Smith et al.

has frequently been deemed proper in cases where any commissions for like services are allowable.

But, in my view, these payments to the assistants were made by him officially and as a service properly belonging to his official station. He selected them — he employed and regulated them — he received, therefore, the money for them, and had general compensation for his duties in respect to the census, fully sufficient to indemnify him for such an incidental labor.

It has been adjudicated in various cases, such as United States v. Wilkins, (6 Wheat. 135,) and McDaniel, (7 Pet. 1,) and Ripley, (Ibid. 18,) and Fillebrown, (Ibid. 28,) and Mann, (2 Brock. 9,) and Gratiot, (15 Pet. 336,) and in United States v. Gratiot, (4 How. 80,) that a reasonable compensation is proper to be made to officers for services clearly unofficial, clearly disconnected and exterior to their duties under their commissions as officers.

And though, in my view, some of these cases have gone too far on the facts, holding services to be unofficial which seem to me not entirely dehors from their duties as officers, yet I do not feel justified in departing from the decisions of the Supreme Court on this subject, till altered by that tribunal itself, or till new legislation occurs by Congress applicable to new cases.

I do not rest this conclusion on the argument in this case by the United States, that the $200 salary given to marshals, "as a full compensation for all extra services," should be construed to embrace all labor and services of all kinds not specified nor specifically paid. On the contrary, I think that relates to extra services or duties, which are by law devolved on him as marshal. And I decide this point exclusively on the ground, that the paying over this money to his assistants was an incident to his official station and duties, and not a service entirely foreign or disconnected with it; and consequently, that commissions for doing it, not being given by

Doggett o. Emerson et al.

any law, are not állowable. Gratiot v. United States, 15 Pet. 336; S. C. 4 How. 80.

There is, likewise, a claim of interest set up by the defendants. I am willing to allow it on the item improperly rejected at the treasury department, beginning at the date of the rejection, and I do it on the precedent of the case of Cogswell, in 3 Sumn. 204, before cited.

But if allowed to the defendants on the principles that they have been kept out of the money illegally since that rejection, the same principle renders it proper to allow interest to the United States, since the demand of the balance due them, and of which they have since been illegally deprived by the defendants.

Making the computations, then, between the parties, on the principles I have explained, the United States is entitled to judgment for the balance.

Under these views, the judgment below, being in some respects erroneous, must be reversed, and the verdict be set aside, and a venire de novo ordered.


Where timber had been cut from land by the grantee of the land, and the money

not realized when a decree was rendered, that he was liable to account for it, he baving rescinded the contract, he was required to file a satisfactory bond to pay

the amount as soon as collected. If four persons agree to purchase of the State a tract of land, and give their joint

note for the consideration, and take a writing from the agent of the State to make a deed on demand, and they authorize one of their number, in writing, to take a deed of the same and sell it for the whole, each being entitled to the extent of one fourth by their private agreement, that one has an interest in the whole as agent, besides his interest as principal in one fourth. And if he gets a deed from the State for one eighth running directly to a purchaser of one eighth, instead of

Doggett o. Emerson et al.

one to himself, and then from himself to the purchaser, he is answerable for the whole consideration received, on the sale being rescinded. But if after the sale, he divided the whole of it between the other three owners, con

cluding to keep as his own share ihe other one fourth of the land, having sold in all to various persons three fourths of it, the other ihree are responsible to resund,

in aid of him, the one third each received. If a sub-agent receives from the vendee a part of the purchase money, and pays it over to the principal, taking land instead of it for his compensation, the principal is liable (on a recision of the purchase for fraud) to repay that part as well as

what he received directly. Where a conveyance is set aside for gross misrepresentations and deceit, the ground

of the decision must be considered to have been fraud, and in such a case, interest is to be paid on the money refunded, without reserence to any demand, and from the time it was received, and interest on the interest from the time of its payment

on any of the notes originally given. Where one of the respondents was discharged as a bankrupt in November, 1843,

but showed no efforts to plead it till A pril, 1845, and in July 1946, after the case had been published and an opinion given on the merits, moved to be allowed to avail himself of it ; tbe Court considered the application too late, and the subject-matter of this bill, a claim in equity to rescind a contract, as one not provable under the bankrupt law.

This case came before the Court again at an adjourned session of the May term, 1846, on exceptions to the report of the Master in Chancery upon the decree against the respondents, rendered at May term, 1845.

The original opinion of the Court was delivered in August, 1845, by Justice Story, and is now published in 3 Story, 700, and a decree was prepared to carry it into effect; and both were communicated to the parties at a sitting held by their agreement under a continuance nisi.

Objections being made to entering up the decree, after the death of Judge Story, the parties were heard on that point, and a request was made for a rehearing of the cause, at the October term, 1845. Afterwards, during that term, an opinion was pronounced by Woodbury, J., for the Court, against the repondents on these points. Ante, p. 1.

The master then proceeded to make the inquiries which were submitted to him, and reported thereon at May term, 1846. Exceptions were filed to his report by all the parties,

Doggett o. Emerson et al.

and were argued at an adjourned session of the Court, held at Portland, July 7th, 1846.

Enough of the report and exceptions' will be stated in the opinion of the Court to show the grounds of the questions. The case was continued nisi, and judgment pronounced at Boston, September 8th, 1846.

W. P. Fessenden, and T. Fessenden and Deblois, counsel for Doggett.

Rogers and Rowe, counsel for Emerson, Farren and Roberts.

McCrillis and Poor, counsel for Norcross and Mason.

WOODBURY, J. The objection taken to the report in this case for not allowing a deduction to the respondents on account of timber, which had been cut recently, but not sold, is disposed of by the subsequent agreement of the parties to any mode of arranging it, which shall appear just to the Court, and shall avoid delay. I therefore direct, on this point, that beside the allowances, specified in the report for timber cut on the land and sold, the further quantity, found by the Master to have been cut, but the proceeds not then realized, is to be allowed and deducted, if they have been so realized when the judgment is entered up; and if they have not been at that time, the complainant is to file a bond with satisfactory sureties, to pay the same on demand to Emerson in trust for those entitled to it, in the proportions in which the consideration paid by Doggett for the land in controversy shall be actually refunded by them.

Most of the other exceptions in this case may be resolved into three general heads.

I st. That which concerns the title of Emerson. 2d. That relating to the computation of interest.

3d. And that concerning the amount of principal which should be refunded. In relation to the question about Emerson's title to the

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