United States v. Griswold

• Decision Date: 10 June 1885
• Citation: 24 F. 361
• Parties: UNITED STATES v. GRISWOLD.
• Court: U.S. District Court — District of Oregon

24 F. 361

UNITED STATES v. GRISWOLD.

United States District Court, D. Oregon.

June 10, 1885

James F. Watson, Dist. Atty., for the United States.

H. Y Thompson, for defendant.

James K. Kelly, for prosecutor.

DEADY J.

By section 3469, Rev. St., it is provided as follows:

'Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised on the terms so offered, and upon the recommendation of the solicitor of the treasury, the secretary of the treasury is authorized to compromise such claim accordingly.'

The district attorney now applies for leave, under this section to enter satisfaction of the judgment in this case in pursuance of an alleged compromise by the secretary of the treasury of the sum or debt remaining due thereon, to-wit $23,576, for the sum of $100.

It appears from the petition that on May 27, 1877, the United States, by B. F. Dowell, commenced an action in this court against William C. Griswold, under sections 3490-3494, Rev. St., for certain forfeitures and damages, on account of the violation of section 5438 of said statutes, in knowingly making, presenting, and obtaining payment from the treasury of the United States, in January, 1874, of certain false claims, commonly called 'The Jesse Robinson Claims;' that thereafter, on July 30, 1879, a judgment was duly entered in said cause in favor of the United States and against the said Griswold for the sum of $35,228, together with costs and disbursements, amounting to $2,875.60; that divers sums have since been collected by execution and applied on said judgment, but there remains still due and owing thereon the sum of $23,576; that on November 22, 1884, the secretary of the treasury, on the report and recommendation of the district attorney and the solicitor of the treasury, compromised said claim for $100, and the release of Griswold's interest in certain property situate in Salem, Oregon, and known as 'The Agricultural Works;' that said Griswold has paid said sum of money and executed said release to the United States; and that the solicitor of the treasury, in a correspondence between himself and the district attorney, copies of which are annexed to the petition, has directed the latter officer to take the necessary steps to carry said compromise into effect. In his letter of November 22, 1884, the solicitor of the treasury says:

'It may be proper to state that I entertained serious doubts as to my authority to compromise such a claim or judgment, and accordingly the secretary of the treasury submitted the matter to the solicitor general. That officer determined the question in favor of the jurisdiction of this office, but added: 'Even if this conclusion was somewhat uncertain, I might still give the above advice, seeing that if it be mistaken the prosecutor may have relief by proceedings in court, whereas, if the advice was to the contrary and mistaken, Griswold could have no means of correcting it that occurs to me.' In order that any rights that Mr. Dowell may suppose he possesses may be fully protected, and, if possible, adjudicated, you are hereby directed, before taking the necessary steps to carry this compromise into effect, to formally notify him of your intention to do so, giving him ample time to appear in court, and make such objection thereto as he may determine his interests require, as I do not desire that Mr. Dowell shall be so situated by your action, or by that of this office, that he can hereafter successfully set up any claim for damages or otherwise, either in court or before congress.'

In pursuance of this direction, the prosecutor, B. F. Dowell, was notified of this application, and appeared and answered the petition, and was heard by himself and counsel in opposition thereto. By his answer the prosecutor objects to the entry of satisfaction, alleging that he was not consulted concerning the alleged compromise; that the action in which the judgment was given was a qui tam one; and that the one-half of said judgment belongs to him, and the United States has no power or authority to compromise his share thereof without his consent. The prosecutor also alleges in his answer that the compromise ought not to be made for the further reason that Griswold has claims on the government of considerable value, specifying them in detail, and a lot in Salem, Oregon, that should be applied on the judgment, and concludes by saying that he has offered and now offers to take one-third of the balance due for the whole judgment. The amount received on this judgment, except a trifling sum, was not made on executions issued thereon, but on a sale by a master of property theretofore fraudulently assigned by the judgment debtor to his wife, in pursuance of a decree of the circuit court in a suit conducted by the prosecutor to subject the same to the payment thereof, after tedious and costly litigation. U.S. v. Griswold, 7 Sawy. 311; S.C. 8 F. 557.

The property spoken of as 'The Agricultural Works' was mortgaged by the judgment debtor to his attorneys and others after the action was commenced, and before judgment therein, and the amount now due on said mortgages is probably more than the property is worth or will sell for. U.S. v. Griswold, 7 Sawy. 296. ^[2] But the interest of said debtor in said property is the legal interest as owner and mortgagor, and is therefore bound by the lien of the judgment from the date thereof; and, if it is of any value, can be sold on execution, subject to the mortgages, and the proceeds of sale applied on the judgment. This being so, the release of Griswold's interest in this property is an idle thing-- a mere make-believe-- that neither inconveniences him nor benefits the United States. Therefore, the only consideration for this compromise by which Griswold is to be absolutely released and discharged from the payment of a judgment against him of $23,576, for and on account of money fraudulently obtained from the United States treasury, is this paltry sum of $100. And, further, the only reason given for this extraordinary favor, not to an unfortunate, but to a fraudulent, debtor, is that he has no visible property, and it will save the trifling trouble and expense of issuing an execution on this judgment once in five years, for the purpose of keeping it in force. In view of these facts, the transaction might more properly be characterized as a remission or pardon than a compromise. However, I suppose the right of the United States to release the defendant from this judgment, rather than the justice or policy of the act, as between it and Griswold, is the real question now before this court. And, first, what is the nature of the action authorized and regulated by sections 3490-3494, Rev. St., and what is the relation of Dowell to the same, and the nature of his interest in the judgment given against the defendant therein

Section 3490, Rev. St., provides that if any person, not in the army or navy of the United States, 'shall do or commit any of the acts prohibited' by section 5438 of said statutes,-- that is, among other things, knowingly make or present for payment any false claim against the United States,-- he shall forfeit and pay to the same the sum of $2,000, and double the damages that the United States may sustain by reason thereof, together with the costs of suit, which forfeiture and damages shall be sued for in one action.

Section 3491 gives the district court of the district where the offender may be found, jurisdiction of the action, and adds:

'Such suit may be brought and carried on by any person, as well for himself as the United States. The same shall be at the sole cost and charge of such person, and shall be in the name of the

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