United States v. Ferguson

• Decision Date: 13 January 1897
• Citation: 78 F. 103
• Parties: UNITED STATES v. FERGUSON.
• Court: U.S. Court of Appeals — Second Circuit

78 F. 103

UNITED STATES v. FERGUSON.

United States Court of Appeals, Second Circuit.

January 13, 1897

Wm. A Poucher, U.S. Atty.

Ford &amp Ferguson, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The plaintiff in error was the defendant in the court below, and seeks to review a judgment for the plaintiff in a suit brought pursuant to the provisions of the act of congress of March 3, 1887, entitled, 'An act to provide for the bringing of suits against the government of the United States. ' Conformably with section 7 of the act, the court below made and filed a written opinion setting forth the specific findings of fact and the conclusions of law involved in the case. There is no bill of exceptions, and none of the evidence or rulings of the court upon the trial are before us. The assignments of error are eight in number.

The suit was brought to recover a small sum of money ($50.60) in the possession of the government, which had been received by the postmaster general of the United States from a post-office inspector. It appears from the findings of fact that the post-office inspector received the money, and afterwards forwarded it to the postmaster general, under the following circumstances: One Atwood had burglariously entered a post office and stolen postage stamps of the value of $320.61, and money to the amount of $50.60, belonging to the government. He was arrested the next day, and postage stamps of the value of $127.30, and $113.96 in money, were found upon his person. The stamps and money were turned over by the arresting officers to the post-office inspector in charge of the case. The inspector, apparently assuming that the money found upon Atwood's person was, to the extent of $50.60 the stolen money, kept that amount in his possession pending the trial of Atwood. In fact, it was not the stolen money, or the proceeds of the stolen postage stamps. The plaintiff, a lawyer, was retained by Atwood to defend him upon the trial and Atwood gave him a written order, directed to the inspector, for the payment of the $50.60 in the hands of the inspector. The plaintiff presented this order to the inspector, but the latter refused to pay over the money. Thereafter Atwood was convicted of the burglary, and the inspector transmitted the money to the postmaster general. As a conclusion of law, the court found that the plaintiff was entitled to judgment for the sum of $50.60, and interest thereon from the time of the demand and refusal.

The first and second assignments of error allege that the court erred in not finding that there was no legal and valid assignment of the money from Atwood to the plaintiff. It is argued in support of these assignments of error that the order given by Atwood to the plaintiff was an assignment of a claim against the United States, and void by force of section 3477 of the Revised Statutes, which enacts that 'all transfers and assignments made of any claim upon the United States * * * shall be absolutely null and void unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due and the issuing of a warrant for the payment thereof. ' The obvious answer to this contention is that, when the money in the hands of the inspector was transferred by Atwood to the plaintiff, there was no claim...