The United States, Appellant v. Joseph Nourse, Complainant

• Decision Date: 01 January 1832
• Parties: THE UNITED STATES, APPELLANT v. JOSEPH NOURSE, COMPLAINANT
• Court: U.S. Supreme Court

31 U.S. 470

6 Pet. 470

8 L.Ed. 467

THE UNITED STATES, APPELLANT v. JOSEPH NOURSE, COMPLAINANT.

January Term, 1832

APPEAL from the circuit court of the United States for the county of Washington, in the district of Columbia.

Mr Coxe, for the complainant, moved to dismiss this appeal for want of jurisdiction.

The circumstances and proceedings in this case, as exhibited in the record, were the following:

Joseph Nourse was removed from the office of register of the treasury of the United States in 1829. The following communication was afterwards addressed to him from the treasury department.

Treasury Department, Comptroller's Office,

26th June 1829.

Sir—Upon a statement of a general account, comprehending the different agencies under which you acted as late register of the treasury, the following balances were found to be due on them, respectively, to the United States, to wit:

As agent for the joint library committee of congress, $2,502 55

Ditto for paying the expenses of stating and printing the public accounts, 934 98

Ditto for paying the superintendent and watchmen of the buildings occupied by the state and treasury departments, 1,325 41

Ditto for paying the expenses of printing certificates of the public debt, 1,011 29

Ditto for paying the contingent expenses of the treasury department, 5,994 90

Amounting, in the whole, to $11,769 13

In the general account rendered by you, a balance of nine thousand three hundred and sixty-seven dollars and eighty-seven cents is claimed; between which and the balance above stated, there is a difference of twenty-one thousand one hundred and thirty-seven dollars; and is occasioned, with the exception of fifty-four dollars and fifty cents paid to Gabriel Nourse and James Watson, suspended for want of vouchers by your having charged a commission of two and a half per cent on all the moneys which have passed through your hands, under the different agencies above specified, but which the accounting officers of the treasury could not allow, there being no law to authorise or sanction such a charge.

A copy of the treasury settlement of your account is inclosed for your information. It becomes my duty to request that you will deposit the abovementioned balance of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, in the office of discount and deposit of the branch bank of the United States at Washington city, to the credit of the treasury of the United States, taking duplicate receipts therefor from the cashier, one of which you will forward to this department.

Respectfully,

Jos. ANDERSON, Comptroller.

Jos. NOURSE, Esq., late Register of the Treasury.

The request contained in this letter not having been complied with, on the 14th of July 1829, the following process was issued by order of the agent of the treasury.

To Tench Ringgold, Esquire, Marshal of the District of Columbia.

Whereas Joseph Nourse, late register of the treasury, in relation to his several accounts as United States agent, stands indebted to the United States in a cash balance of eleven thousand seven and sixty-nine dollars and thirteen cents; agreeably to the settlement of his account, made by the proper accounting officers of the treasury, a copy of which is herewith inclosed; and whereas the said Joseph Nourse, having failed to pay over according to the act of congress, passed the 15th day of May 1820, entitled 'an act for the better organization of the treasury department,' the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, these are, therefore, in pursuance of the said act, to command you to proceed immediately to levy and collect the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, by distress and sale of the goods and chattels of the said Joseph Nourse, giving ten days previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town or county where the said goods or chattels were taken, or in the town or county where the owner of such goods or chattels may reside; and should there not be found sufficient goods and chattels to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, remaining due and unpaid as aforesaid, you are hereby commanded to commit the body of the said Joseph Nourse to prison, there to remain until discharged by due course of law: and should the said Joseph Nourse be committed to prison, as aforesaid, or if he abscond, and goods and chattels sufficient to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, be not found, you are hereby commanded to levy upon, and expose to sale, at public auction, for ready money, to the highest bidder, the lands, tenements and hereditaments of the said Joseph Nourse, or so much thereof as may be necessary to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, or whatever sum there may remain due and unpaid thereof, after you shall have given notice of the said sale, at least three weeks prior to its taking place, in not less than three public places in the county of district where such real estate is situate; and all moneys which may remain of the proceeds of such sale, after satisfying the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, and paying the reasonable costs and charges of the sale, you are required to return to the proprietor or proprietors of the land or real estate sold as aforesaid: and whatever you may do in obedience to this warrant, make return thereof to this office; and for so doing this shall be your sufficient authority. Given under my hand and seal, at my office, in the department of the treasury of the United States, at the city of Washington, in the district of Columbia, this fourteenth day of July, in the year of our Lord one thousand eight hundred and twenty-nine.

S. PLEASONTON [SEAL]. Agent of the Treasury.

This warrant was issued under the second section of the act of congress passed May 15, 1820, 3 Story's Laws U. S. 1791, entitled 'an act providing for the better organization of the treasury department.' The third section provides 'that if any officer employed, or who has been heretofore employed in the civil, military or naval departments of the government, to disburse the public money appropriated for the service of those departments respectively, shall fail to render his accounts, or to pay over in the manner and in the times required by law, or the regulations of the department to which he is accountable, any sum of money remaining in the hands of such officer, it shall be the duty of the first or second comptroller of the treasury, as the case may be, who shall be charged with the revision of the accounts of such officer, to cause to be stated and certified, the account of such delinquent officer to the agent of the treasury, who is hereby authorised and required, immediately, to proceed against the delinquent officer in the manner directed in the preceding sections, all the provisions of which are hereby declared to be applicable to every officer of the government charged with the disbursement of public money, and to their sureties, in the same manner and to the same extent as if they had been described and enumerated in the said section.'

The second section of the act directs the warrant to issue to the marshal of the district where the delinquent resides; and that the marshal shall proceed to levy the sum due, by distress and sale of the goods and chattels of such delinquent, and if there be not sufficient goods and chattels to satisfy the warrant, the marshal is authorised to take the person of the delinquent, and to commit him to prison, there to remain until discharged by due course of law, & c.

The fourth section provides, that if any person shall consider himself aggrieved by any warrant issued under the act, he may prefer a bill of complaint to any district judge of the United States, setting forth the nature and extent of the injury of which he complains; and thereupon the judge aforesaid may, if in his opinion the case requires it, grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires; but no injunction shall issue until the party applying shall give bond and sufficient security, conditioned for the performance of such judgment as shall be awarded against the complainant, in such amount as the judge granting the injunction shall prescribe: nor shall the issuing of said injunction in any manner impair the lien produced by the issuing of such warrant. And the same proceeding shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if upon dissolving the injunction, it shall appear to the satisfaction of the judge who shall decide upon the same, that the application for the injunction was merely for delay, 'the judge may add damages, not to exceed ten per centum on the principal sum.'

The fifth section provides, that such injunctions may be granted in or out of court; and the sixth section enacts, 'that if any person shall consider himself aggrieved by the decision of such judge, either in refusing to issue the injunction, or if granted, on its dissolution, it shall be competent for such person to lay a copy of the proceeding had, before the district judge of the supreme court, to whom authority is hereby given, either to grant the injunction or permit an appeal, as the case may be, if in the opinion of such judge of the supreme court the equity of the case requires it; and thereupon the same proceedings shall be had upon such injunction in the circuit court as are prescribed in the district court, and subject to the same conditions in all respects.'

The marshal of the district of Columbia having levied...