Page images
PDF
EPUB

district of Florida, at Pensacola. March 7, 1884, the Acting Solicitor of the Treasury notified the First Comptroller that he was advised that Wharton had abandoned the clerk's office, and had "failed to account for moneys paid into the Registry of the Court by the United States marshal in certain cases under the charge of this [the Solicitor's] office." The amount is not yet ascertained, but proper examinations are in progress to determine it. It is reasonably certain that nothing can be made from said Wharton.

March 6, 1884, said Humphreys was appointed and qualified as clerk of said courts to succeed Wharton. There is claimed by said Humphreys to be due to him from the United States for fees earned as clerk at the March Term, 1884, of said court the sum of $338.85, of which $254 was allowed by the First Auditor, June 9, 1884, whose report, however, has not yet been adjusted by the First Comptroller. Said Humphreys asks for payment. The question is submitted to the First Comptroller to decide whether said sum shall be paid or withheld to await the determination of Humphrey's liability to the United States on the said bond of Wharton.

Hon. J. M. McGrew and William Small submitted an argument for Humphreys, claiming "that the act of March 3, 1875 (18 Stat., 481),

does not apply to our client's case, as it has not been ascertained whether he is indebted to the United States as surety on the bond of Wharton. No suit has been instituted. Wharton denies indebtedness to the United States. The withholding of our client's salary, besides being without authority of law, is contrary to public policy."

OPINION BY WILLIAM LAWRENCE, First Comptroller.

If the relations between the United States and Humphreys existed between two private citizens, there can be no doubt as to what would be properly and legally done. If A owed B $1,000 for the personal services of the latter to the former, and if B, as surety for C, was indebted to A in $1,000 on a joint and several bond for the payment of money past due, it is not probable that A, at least while he could have any doubt of the responsibility of C, would make payment to B. In such case, in a suit by B against A, the latter could, under the ordinary statutes of set-off, defeat the action by setting off the amount due from B to A on the bond.

At common law set-off was not allowed as a defence, except so far as it arose out of the same transaction. The debt set off had to be connected in its origin with the debt upon which the action was brought. (2 Pars. Cont., 6th ed., 733.) A set-off, as a defence, in its proper sense of cross demand, was at common law recoverable only by a separate action. (Adams, Equity, [222].) The want of such a defence at law being productive of great mischief and inconvenience, it was introduced by equity (2 Ban. Neg. Inst., § 1422). By the statute of 8 Geo. II, c. 22,

it was enacted that where there "are mutual debts between the plaintiff and defendant, one debt may be set off against the other." (Bac. Abr., Set-off; 2 Pars. Cont., 239 et seq.; Chit. Cont., 840 et seq.; Burrill's Law Dict., Recoupment; Bart. Pr., 146.) The provisions of this statute have been generally adopted by the various statutes of set-off in this country, though they will be found as a rule, less rigorous in their terms. Courts of equity generally extend the doctrine of set-off beyond the law. (Pars. Cont., 6th ed., 734.) In order to prevent irremediable loss courts of equity sometimes allow a set-off where it could not be admitted at law, as, for instance, in cases where the demand is not yet payable. (Feazle v. Dillard, 5 Leigh, 30; McClellan v. Kinnaird, 6 Grat., 352; 2 Stor. Eq., §§ 1434, 1437.) But the general principle underlies the various statutes, that the debts which can be set off against each other must arise and rest upon the same right. (Pars. Cont., 738; Brewer v. Norcross, 2 Green, 219; Glazebrook v. Ragland, 8 Grat., 333.) In a suit brought by an individual there cannot be set off against him a debt due by him jointly with another (2 Dan. Neg. Inst., § 1429). This may be said to be the invariable rule resting upon the various English and American statutory enactments which regulate the subject of set-off. But the English and American rules differ concerning the right of setoff of an instrument made by joint and several makers against either of them in an action brought by either for a debt due him individually. In England such a set-off is not allowed, because under the statute of 8 Geo. II, c. 22, the debts due between the parties must be strictly แ mutual," in order that they may be admitted as a set-off. But in some of the States of the United States such a set-off is allowed, either by express statute or by construction. (2 Dan. Neg. Inst., § 1429; Powell v. Hogue, 8 B. Mon., 443; Pate v. Gray, 1 Hemp. C. C., 155; 2 Pars. N. & B., 609. See 2 Dan. Neg. Inst., § 1431, and cases cited, viz: Concord v. Pillsbury, 33 N. H., 310; Mahurin v. Pearson, 8 Id., 539; Kent v. Rogers, 24 Miss., 306; Slayback v. Jones, 9 Ind., 470; Newell v. Salmons, 22 Barb., 647; Lynch v. Bragg, 13 Ala., 773.) "In action on a bond given with surety a claim of the principal debtor may be set off." (Waterman on Set-Off, 259, citing Concord v. Pillsbury, 33 N. H., 310; citing Mahurin v. Pearson, 8 Id., 541; Boardman v. Cushing, Id., 119; Slayback v. Jones, 9 Ind., 470. See Woodruff v. State, 2 Eng., 333. See Waterman on Set-Off, 253, citing Booe v. Watson, 13 Ind., 387; Kenedy v. Cunningham, Cheeves R., 50; Bullard v. Dorsey, 7 S. & M., 9; Powell v. Hogue, 8 B. Mon.,.443; Lewis v. Culbertson, 11 Serg. & Rawle, 48; Meade v. Scott, 4 Vt., 26; Meade v. Leslie, 2 Vt., 569; Cowder v. Elliott, 2 Mo., 60). "The amount due on the condition of a bond may generally be pleaded in set-off." (2 Parsons, Cont., 6th ed., 737, [899]; Burgess v. Tucker, 5 Johns., N. Y., 105; Neariffe v. Hogan, 2 Burr, 1024.) The result of the authorities as applied to private persons in a case analogous to this is, that A when sued by B on a debt arising on contract, may set off a similar indebtedness owing jointly and severally by B and C to A.

Such are the principles of law applicable as between private persons. The Supreme Court has said that "with few exceptions, growing out of considerations of public policy, the rules of law which apply to the gov ernment and to individuals are the same." (McKnight v. United States, 98 U. S., 186.)

It may, however, be urged that the jurisdiction of law courts in matters of set-off is regulated by statutes which do not apply to accounting officers. To this there are several sufficient answers.

1. The right to withhold from the claimant in this case the compensation due him, until his liability as surety on the bond of Wharton is determined, and until the necessity of enforcing such liability is ascertained, is well settled as a part of the system of National Executive common law. Usage has made it law. This has been shown elsewhere. (Pease's case, 4 Lawrence, Compt. Dec., 504.) Parties who deal with the Government do so in view of the usage, which enters into and becomes part of the contract or conditions on which their dealings are based. (1 Greenl. Ev., 294; 2 Wharton Ev., 969, 970.) This right to withhold payment for a reasonable time, of course, could not exist, if the further right did not exist to make the set-off, when the claims on both sides shall be finally adjusted. If the United States were now sued by Humphreys in the Court of Claims, a reasonable time would undoubtedly be allowed to secure evidence in support of a set-off. And the Supreme Court has decided that under section 1359 of the Revised Statutes a set-off in such case may be made in the Court of Claims. (McKnight v. United States, 98 U. S., 186.) This was in a case, too, in which the syllabus says:

"A., in whose favor the allowance was made, being then indebted as surety on an official bond given to the United States, the amount of such indebtedness was properly retained by the Treasury Department as a set-off to await the final adjustment and settlement of the accounts of his principal. Held, that the Court of Claims was bound to adjudge accordingly."

The usage of the accounting officers to make a set-off in such cases has become National Executive common law. Thus, the authority of the proper accounting officers to retain the salary of the claimant in this case is fully sustained. (3 Lawrence, Compt. Dec., Introd., XXII, and note; United States v. Macdaniel, 7 Pet., 14.)

2. The authority to retain from the claimant the salary now in ques tion and to make the set-off mentioned, exists by force of sections 236, 272 and 269 of the Revised Statutes. This is sufficiently shown elsewhere. (Taggart's case, 17 Ct. Cl., 327; Pease's case, 4 Lawrence, Compt. Dec., 502.)

The act of March 3, 1875 (18 Sta t., 481), provides:

"That when any

claim [against the United States] duly allowed by legal authority shall be presented to the Secretary of the Treasury for payment, and the * claimant therein shall be indebted to the United States in any manner, whether as principal or surety, it shall

be the duty of the Secretary of the Treasury to withhold payment of an amount of such claim equal to the debt thus due to the United States."

In cases of this class the Secretary acts through the Comptroller, who retains the money by declining to authorize payment in the usual form. Sections 236, 277 and 269 of the Revised Statutes give the authority by which the indebtedness to the United States of Humphreys as surety on the bond of Wharton may be ascertained, and this will be done and the set-off made as soon as practicable.

Payment will be withheld from the claimant until his liability, if any, to the United States is ascertained, when a set-off will be made.

TREASURY DEPARTMENT,

First Comptroller's Office, November 12, 1884.

IN THE MATTER OF THE POWER OF ANY OFFICER OF THE EXECUTIVE GOVERNMENT OF THE UNITED STATES TO CHANGE THE SETTLEMENT OF AN ACCOUNT BY A COMPTROLLER.-CRITTENDEN'S OPINION.

1. The decision of a Comptroller "is final and conclusive upon all branches of the executive government" of the United States.

2. "The settlement and adjustment of accounts have been by law left to" accounting officers.

The following opinion of Attorney-General Crittenden has never heretofore been published. The original is on file in the Treasury Department, and a copy is in the records of the Department of Justice. He gave a somewhat different opinion November 13, 1852 (5 Op. Att.Gen., 630). This subject has been discussed, and opinions have been collected, elsewhere (1 Lawrence, Compt. Dec., 2d ed., App., Ch. XII, pp. 509-559).

OFFICE OF ATTORNEY-GENERAL,

Septr. 12th, 1850.

SIR: I have examined the case of Robert H. Piatt, on whose part a pecuniary compensation is claimed from the Government for services alleged to have been rendered by him in the war of 1812.

That claim, as it appears, has been regularly submitted, for examination & settlement, to the proper accounting officers of the Treasury Department, & has been decided against & rejected by both Auditor & Comptroller. From that decision an appeal is made to you, & you have referred the case for my opinion.

Before taking any notice of the merits of this claim, I desire most respectfully to suggest for your consideration, whether it is proper for you to interfere at all in the case, or for me to give any opinion on its merits.

My clear conviction is that the decision of the Comptroller on this claim is final and conclusive upon all the branches of the Executive government—

that the law allows of no appeal to you, & gives you no power to revise or interfere with that decision for any purpose of controlling, correcting, or altering it. Congress has properly and wisely forborne to impose on the President the impracticable duty of exercising an appellate jurisdiction in the settlement of the almost innumerable claims that are brought against the Government. His supervision & his duties are of a higher & more general character, and the settlement & adjustment of accounts have been left to accountants.

These views are all fully sustained by a most able and luminous opinion of the late Att'y-General, Mr. Wirt, addressed to the then President, upon a case almost identical with that now under consideration & involving the same question. I concur in that opinion, & refer to it as eminently worthy of perusal. (Opinions of the Attorneys-General, page 471.) It contains a citation of all the acts of Congress that relate to the subject, & an argument to which nothing can be added.

Such are my impressions against your power of interference in this case, & until you decide otherwise, I shall forbear to express any opinion on the merits of the claim in question, & await your further directions.

I have the honor to be, very respectfully, yr's, &c.,

To the PRESIDENT.

J. J. CRITTENDEN.

IN THE MATTER OF THE RIGHT OF A DISTRICT ATTORNEY OF THE UNITED STATES TO RECEIVE PAYMENT FOR SERVICES RENDERED BY HIS ASSISTANT ATTORNEY.-ZABRISKIE'S CASE.

1. Under section 363 of the Revised Statutes the Attorney-General may retain an at. torney to assist a district attorney of the United States, and the amount of his compensation may be fixed after such service has been rendered.

2. The authority of the Attorney-General to fix the amount of compensation to be paid to an assistant to a district attorney cannot be delegated.

3. Payment for the services of such assistant cannot be lawfully made to the district attorney.

May 8, 1883, the Attorney-General addressed a letter to Edmund W. Wells, Prescott, Territory of Arizona, saying:

"You are appointed as assistant to the U. S. Attorney for the Territory of Arizona, James A. Zabriskie, Esq., to discharge the duties of Assistant Attorney in all government business in the U. S. Court, held in the Third Judicial District in the Territory.

Your compensation will be paid out of his fees and emoluments of office."

May 15, 1883, Wells took the oath and entered on the duties of his office. August 10, 1884, James A. Zabriskie, the Attorney of the United States for the Territory of Arizona, rendered an account against the United States for the services of said Wells to the amount of $540,

« ՆախորդըՇարունակել »