United States, Plaintiff In Error v. Joseph Nourse

• Decision Date: 01 January 1835
• Citation: 34 U.S. 8,9 L.Ed. 31,9 Pet. 8
• Parties: UNITED STATES, PLAINTIFF IN ERROR v. JOSEPH NOURSE
• Court: U.S. Supreme Court

34 U.S. 8

9 Pet. 8

9 L.Ed. 31

UNITED STATES, PLAINTIFF IN ERRORv.JOSEPH NOURSE.

January Term, 1835

IN error to the circuit court of the United States of the District of Columbia, for the county of Washington.

This was an action of assumpsit instituted by the United

States in the circuit court, on an account stated at the treasury of the United States, against 'Joseph Nourse, late register of the treasury of the United States.' The account was dated 'auditor's office, 28th of July 1829,' showing a balance in favour of the plaintiffs, of that day, of 11,769 dollars and 13 cents, and was duly and regularly certified, according to the provisions of the acts of congress, by the officers of the treasury. The defendant pleaded non assumpsit.

The cause was submitted to the circuit court on an agreement of the parties, stating that the suit was brought upon a transcript from the treasury, which was annexed to a record in a former proceeding, originating in the district court of the district of Columbia, and brought before the supreme court by appeal. It was also agreed, that the defendant should have the benefit of the proceedings in that case, as if the same had been pleaded, or, as if given in evidence upon the trial. That upon this statement judgment should be given as on a case agreed, and that either party should be at liberty to refer to the printed record in the case of the United States v. Nourse, as if the same were fully incorporated in the record. See 6 Peters 470.

The circuit court gave judgment for the defendant, and the United States prosecuted this writ of error.

The case was argued by Mr Butler, attorney-general, for the plaintiffs in error; and by Mr Coxe, for the defendant.

For the United States, the attorney-general said, that the only question in the case was whether the proceedings against the defendant, under the warrant of distress, and the decision of the district judge in that case, were conclusive, and a bar to further action by the United States. The court will examine particularly the case in 6 Peters 470.

He contended, that the whole object of the act of congress of 1820, 3 Story's Laws U. S. 1791, in giving to a public debtor, 'an officer' of the United States, who had received public money, a right to apply to a district judge of the United States, when a warrant of distress was issued against him; was to ascertain whether the United States were entitled to the summary process of a distress warrant to which they had

resorted. This construction of this act will regulate the case before the court. An examination of the third section of the act, 3 Story 1794, will fully maintain, that if the United States do not think proper to avail themselves of that act, they may proceed against their debtors as in other cases.

It is admitted by the plaintiff in error, that if this court had decided that the proceedings in the former case were judicial, they would be conclusive. But the contrary has been the decision; and they have been held not to be judicial in their nature.

The true view of the law is, that in cases where it is perfectly clear on the books of the treasury, that there is indebtedness by a public officer for public money received by him, the proceedings by distress warrant may be resorted to; and if the party submits to it, there is an end of the matter. But if he thinks proper to apply to the district judge and satisfies him, the judge may restrain the United States from proceeding further on the execution. Afterwards the United States may sue for the debt claimed by them in the usual form, and as if the distress warrant had not issued. By this construction of the law, both the United States, and the defendant in the suit, have secured the right of a trial by a jury; while, by a different version of the law, this right is entirely taken away.

But supposing the proceeding in a proper case, and one which the law was intended to comprehend, may be final; the case set up in bar to this suit was not such a case. It does not appear that the person against whom the distress warrant issued, was 'an officer' within the act of 1820.

The general rules as to the conclusiveness of judicial proceedings are perfectly settled. No one is to be twice vexed for the same matter, and former proceedings are a complete bar to all subsequent actions for the same cause of action; and may be pleaded and given in evidence as an estoppel.

This case may stand for the consideration of the court, as if the former proceedings had been regularly pleaded in bar. When in cases of such a character, or resting on the plea of former proceedings, it appears that the merits have not been decided, as in cases of 'nonsuit' and 'retraxit,' the matters may be examined and decided upon in a subsequent suit. Starkie's Evidence, part 2, p. 198, and the cases referred to.

It must distinctly appear that the merits were examined. 3 Wendall's Rep. 27, 33; 8 Wendall's Rep. 9.

In the bill filed by the defendant in the case in 6 Peters, Mr Nourse took the ground that the money charged to him in the treasury transcript, had not been received by him as 'an officer of the treasury,' but as a mere 'agent' of that department. He claimed in his bill that the term 'officer' in the act of congress, was applicable only to those who in such a capacity received the money charged to him, and which formed the items of the account. 6 Peters 405. The other matters in the bill alleged that nothing was due to the United States, but that a balance was due to the complainant. Thus it appears that one of the material grounds for the application made to the district judge, was that the money was not received by Mr Nourse as an 'officer.' In the case of Randolph,^(a) which came before the chief justice of this court

and the district judge of the eastern district of Virginia, in the circuit court of that district, it was decided that it must appear in the account for which a distress warrant shall issue, that the money claimed has been received by the debtor to the United States as an officer. The statute, it was held, should be construed strictly.

2 Brock. 448.

It will be said that the district judge proceeded, in the former case, on the ground that Mr Nourse was 'an officer;' that he took jurisdiction of the case upon that view of it; but it is submitted to this court that this must manifestly appear; it must be fully and clearly established, that in the decree, or opinion of the judge, he was an officer within the intendment

of the statute; and this is not the fact. In the former case, a reference of the accounts between the United States and the complainant in the bill, was made to auditors. The credits claimed against the balance of the account stated at the treasury, were founded on items of expenditures made by Mr Nourse, as agent for their disbursement; and a perpetual injunction

was awarded. It does not appear in the decree, what the decision of the judge was, as to the capacity in which Mr Nourse acted, in the receipt of the money; nor does he say any thing to negative or affirm the fact. Nor is it material to the claim of the United States that the proceeding is not a bar to this suit, that this did not appear. It is enough that the

allegation was made by Mr Nourse, that he did not act as 'an officer,' in making the disbursements, and that the judge so decided the case. The judge says that the services were extraofficial; that the sums due as an offset, were for services not official; and that the money received from the United States, was not received by him as register of the treasury.

Because the United States submitted to the proceeding, it has not validity. All the proceedings, after the warrant of seizure, would be illegal, if the government had not a right to issue it: and no act of the officers of the United States could be of avail, to give it validity.

Suppose the warrant had issued by direction of the solicitor

of the treasury, who has no authority to order it, and no exception had been taken to it; would the proceedings under it have had a legal existence? As it may be considered that the decree was made by the district judge, on the allegation, in the bill for the injunction, that the money was not received as an officer, this court will not infer that this was the point decided.

Mr Coxe, for the defendant, contended that the whole proceedings in the case which is reported in 6 Peters, were judicial. Two grounds for relief were presented to the district judge. The judge ordered the accounts between the United States and Mr Nourse to be audited, thus passing by one of the grounds, and considering Mr Nourse as 'an officer;' and

deciding the case, after the report of the auditors, in that view of it. As to the nature of such a proceeding, he cited 5 Dane's Abridgement 223; 'where one acts as a judge, and the matter is within his jurisdiction, his sentence binds, until reversed.'

In awarding the injunction, he acted judicially, and no other

view can be taken of his action in this case, when the record and the decree are examined. In the case of the Arredondo, 6 Peters 709, 711, this court have said: the power to hear and determine a cause, is jurisdiction; it is coram judice, whenever a cause is presented which brings this power into action; 6 Peters 709. All questions arising in the case are to be decided.

--------

to a court of justice. I will proceed to other items of the account.

He is re-charged with slops issued by him, which belongs to the estate of Mr Timberlake, as appeared by his books.

Is this to be settled at the treasury, under this act of congress, or does the inquiry properly belong to a court of justice?

He is charged with German linen, belonging to his private stores, which he turned into the navy store at Charlestown, as slops. This item had been allowed to him on a former settlement of his accounts. It is not alleged that this linen has been returned to him...