McGovern v. United States

• Decision Date: 25 March 1921
• Docket Number: 2924.
• Parties: McGOVERN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F. 262

McGOVERN et al. v. UNITED STATES.

No. 2924.

United States Court of Appeals, Seventh Circuit.

March 25, 1921

Charles H. Soelke, of Chicago, Ill., for the motion.

Charles F. Clyne and Meyer Linker, both of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

BAKER Circuit Judge.

Plaintiff in error, McGovern, deposited Liberty Bonds with the clerk of this court in lieu of personal sureties. His executrix showing that plaintiff in error has departed this life, moves that the bonds be returned to her free from the clerk's charge of 1 per cent. on the amount thereof.

Under rule 23 of this court (150 F. cxxxix, 79 C.C.A. cxxxix) the fees of the clerk for receiving, keeping, and paying money in pursuance of any statute or order of court shall be 1 per cent. on the amount so received, kept, and paid. This rule is in conformity to section 828, Rev. St. U.S. (Comp. St. Sec 1383), and in pursuance of the Act of February 19, 1897, c 263 (Comp. St. Sec. 1376).

Section 1320, Revenue Act of 1919 (40 Statutes at Large, p. 1148 (Comp. St. Ann. Supp. 1919, Sec. 3301a)), is as follows:

'Sec. 1320. That wherever by the laws of the United States or regulations made pursuant thereto, any person is required to furnish any recognizance, stipulation, bond, guaranty, or undertaking, hereinafter called 'penal bond,' with surety or sureties, such person may, in lieu of such surety or sureties, deposit as security with the official having authority to approve such penal bond, United States Liberty Bonds or other bonds of the United States in a sum equal at their par value to the amount of such penal bond required to be furnished, together with an agreement authorizing such official to collect or sell such bonds so deposited in case of any default in the performance of any of the conditions or stipulations of such penal bond. The acceptance of such United States bonds in lieu of surety or sureties required by law shall have the same force and effect as individual or corporate sureties, or certified checks, bank drafts, post office money orders, or cash, for the penalty or amount of such penal bond.'

It is to be observed that rule 23 does not limit the fee to the handling of 'cash,' meaning thereby the coinage of the government and the issues of notes which the government by law ranks with its coins. 'Money' is a broader and more generic term and may include not only...