UNITED STATES V. NOURSE, 34 U. S. 8 (1835)

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U.S. Supreme Court

United States v. Nourse, 34 U.S. 9 Pet. 8 8 (1835)

United States v. Nourse

34 U.S. (9 Pet.) 8


The Treasury Department of the United States, on 14 July, 1829, issued a warrant of distress directed to the Marshal of the District of Columbia, commanding him to levy and collect, by distress and sale of his goods and chattels, a sum of money alleged to be due to the United States on a Treasury transcript by Joseph Nourse, late Register of the Treasury. This warrant was issued in pursuance of the 3d and 4th sections of the act of May 15, 1820, "providing for the better organization of the Treasury Department." Under the provisions of the 4th section of the act, Mr. Nourse obtained an injunction from the Chief Justice of the District of Columbia to stay all further proceedings on the said warrant. The bill presented by Mr. Nourse to the Chief Justice of the District of Columbia asserted that the United States was indebted to him for compensation for extra services he had rendered to the United States, in a sum exceeding the amount claimed by the United States, which claim was denied in the answer filed by the district Attorney of the United States both as to the legality and the amount of the claim.

The court determined that Mr. Joseph Nourse was entitled to compensation for the extra services he had rendered to the government in the agencies mentioned in the bill, and appointed auditors to ascertain the value of his services and compensation, and to report thereon without delay. The report of the auditors allowed to the complainant a commission of two and a half percent on the sum of nine hundred and forty-three thousand three hundred and eight dollars, and eighty-three cents, disbursed by him in the several agencies in which he had been employed, leaving a balance due to him from the United States. The report was confirmed, and the injunction made perpetual.

The United States then instituted their suit against Joseph Nourse in the Circuit court for the District of Columbia, in the County of Washington, on an account authenticated according to law by the proper accounting officers, being the same account, and claiming the same amount as in the warrant of distress, and on which the decree of THE CHIEF JUSTICE was pronounced. It was agreed that the defendant should have the benefit of the proceedings in that case, as if the same had been pleaded and given in evidence. The circuit court adjudged the proceedings in the former action a bar to this action.

By the Court.

"It is a rule to which no exception is recollected that the judgment of a court of competent jurisdiction, while unreversed, concludes the subject matter as between the same parties. They cannot again bring it into litigation."

An execution is the end of the law. It gives the successful party the fruits of his judgment, and the distress warrant is a most effective execution.

It may act on the body and estate of the individual against whore it is directed.

It would excite some surprise if, in a government of laws and of principle furnished with a department whose appropriate duty is to decide questions of right, not only between individuals but between the government and individuals, a ministerial officer might, at his discretion, issue this powerful process and levy on the person, lands, and chanrobles.com-red

Page 34 U. S. 9

chattels of the debtor any sum he might believe to be due, leaving to that debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the Legislature of the United States.

Under the act of Congress, the Chief Justice of the District of Columbia had full jurisdiction over the case.

After a reference to auditors, according to the course of courts of chancery in matters of account, a final decree was pronounced against the United States, and a perpetual injunction awarded. This decree is now in full force, and was in force when this suit was instituted. The act of Congress gave jurisdiction in the specific case to the district judge. He might have enjoined the whole or a part of the warrant. His decree might have been for or against the United States for the whole or a part of the claim. On the sum which he found to be due, he is directed to assess the lawful interest; he may add such damages as, with the interest, shall not exceed the rate of ten percent per annum on the principal sum. Had the district judge finally enjoined a part of the sum claimed by the United States, and decreed that the residue should be paid with interest, all would perceive the unfitness of asserting a claim in a new action to that portion of the debt which had been enjoined by the decree of the court. And yet between the obligation of a decree against the whole claim, and against a part of it, no distinction is perceived.

The relief which is given by the act of Congress, on which the warrant of distress may be issued by application to any district judge of the United States for an injunction to stay proceedings on such warrant, is not confined to an officer employed in the civil, military, or naval departments of the government, to disburse the public money appropriated for the service of those departments respectively, who shall fail to render his accounts, or pay over, in the manner required by law, any sum of money remaining in the hands of such officer.

When the legislature turns its attention to the individual against whom the warrant may issue, the language of the law is immediately changed. The word person is substituted for officer, and it declares, "that if any person should consider himself aggrieved by any warrant issued under this act, he may prefer a bill of complaint, &c.," and thereupon the judge may grant an injunction, &c.

The character of the individual against whom the warrant may be issued is entirely disregarded by that part of the law. Be he whom he may, an officer or not an officer, a debtor or not a debtor; if the warrant be levied on his person or property, he is permitted to appeal to the laws of his country, and to bring his case before the district judge, to be adjudicated by him.

The district judge had full jurisdiction over the case, and his decision is final. The judgment on the warrant of distress, and the proceedings upon it are consequently a bar to any subsequent action for the same cause.

This was an action of assumpsit instituted by the United chanrobles.com-red

Page 34 U. S. 10

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, 28 July 1829," showing a balance in favor of the plaintiffs, of that day, of $11,769.13, and was duly and regularly certified, according to the provisions of the acts of Congress, by the officers of the Treasury. The defendant pleaded nonassumpsit.

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 United States v. Nourse, as if the same were fully incorporated in the record. See 31 U. S. 6 Pet. 470.

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

Page 34 U. S. 25


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