On the opening of the record for the argument of this case, it
was found that the sum in controversy was less than the amount
which, according to the act of Congress, authorizes a writ of error
except on a special allocatur, from the Circuit Court of
the
District of Columbia, to this Court. The provisions of the law
permit writs of error to be sued out without such allocatur, when
the sum in controversy amounts to one thousand dollars and
upwards.
On the application of counsel stating the questions in the case
were of great public importance and were required to be determined
in order to the final settlement of other accounts in which the
same principles were involved, the Court gave the special
allocatur.
The Marshal of the District of Columbia, upon the settlement of
his accounts at the Treasury, claimed an allowance and credit by
the United States for the sum of $1,111.02, being the amount of his
poundage fees on a
capias ad satisfaciendum against John
Gates at the suit of the United States, and upon which Gates was
arrested by the defendant, as marshal, and committed to jail, and
afterwards discharged by order of the United States.
Admitting the defendant in an execution to be liable for
poundage if the plaintiff releases or discharges him and thereby
deprives the marshal of all recourse to the defendant, there can be
no doubt that the plaintiff would thereby make himself responsible
for the poundage.
By the statutes of Maryland relative to poundage fees, in force
in the County of Washington, in the District of Columbia, the
marshal is entitled to poundage on an execution executed, and they
fix the rate of allowance; those statutes do not designate which of
the parties shall pay the poundage.
It is undoubtedly a general rule that no court can give a direct
judgment against the United States for costs in a suit to which
they are a party, either on behalf of any suitor or any officer of
the government. But it by no means follows from this that they are
not liable for their own costs. No direct suit can be maintained
against the United States. But when an action is brought by the
United States to recover money in the hands of a party who has a
legal claim against them for costs, it would be a very rigid
principle to deny to him the right of setting up such claim in a
court of justice, and turn him round to an
application to Congress. If the right of the party is fixed by
the existing law, there can be no necessity for an application to
Congress except for the purpose of remedy. And no such necessity
can exist when this right can properly be set up by way of defense
to a suit by the United States.
The discharge in this case is absolute and unconditional, and
the marshal had no authority to hold the defendant in custody
afterwards. Admitting Gates to have been liable for these poundage
fees, the marshal's power or right to compel payment from him was
taken away by authority of the United States, the
plaintiff in the suit. And the right of the marshal to claim his
poundage fees from them is thereby clearly established.
Page 33 U. S. 151
This was an action of assumpsit instituted by the United States
in the circuit court to recover the sum of $345, money of the
plaintiffs, alleged to have been received by the defendant as
Marshal of the District of Columbia. The defendant pleaded
nonassumpsit, and issue was joined thereon. The counsel
for the plaintiffs and defendant submitted the following statement,
subject to the opinion of the court on the law and facts.
This is an action of assumpsit, brought to recover the sum of
$345, money of the plaintiffs which came to the hands of the
defendant as marshal of the District of Columbia. Upon the
settlement of the defendant's accounts as marshal with the
Treasury, he claimed an allowance and credit for the sum of
$1,111.02 (
see account marked A), being the amount of his
poundage fees on a
capias ad satisfaciendum against John
Gates at the suit of the United States, and upon which Gates was
arrested by the defendant as marshal and committed to jail, and
afterwards discharged by order of the President of the United
States. (
See statement marked B.) It is agreed that this
claim was presented to the accounting officers of the Treasury
before the institution of this suit, and disallowed.
Account A
United States, Dr. June term, 1819
To cepi ca. sa. v. John Gates; released from jail by
order of the President of the United States . . . . .50
Writ and return . . . . . . . . . . . . . . . . . . . .14
Poundage fees on first $26.67, at 7 1/2 percent . . . 2.00
Ditto on residue, $36,946 at 3 percent. . . . . . . .
1,108.38
---------
$1,111.02
T. RINGGOLD, M.D.C.
Statement B
"District of Columbia, County of Washington, Circuit Court,
December term 1818. United States v. John Gates, Jr. January 5,
1819. Judgment for sixty-five thousand dollars,
Page 33 U. S. 152
current money, damages, to be released on payment of $63,597.73
or such other sum as may hereafter be certified by the accounting
officers of the Treasury -- costs $11.82. Upon which judgment
execution
(ca. sa) was issued to June term, 1819, and
returned by the marshal with the following endorsements thereon:
"
"
Certificate of second auditor of amount
due"
"Treasury Department, Second Auditor's Office, 27 March 1819. I
certify, that on settlement of the account of John Gates, Jr., late
paymaster of the United States light artillery, on 29 October,
1818, a balance of $36,960 was found due by him to the United
States, which said balance is now standing against him on the books
at this office."
"WILLIAM LEE, 2d Auditor"
"
Return of marshal"
"Cepi, released by order of the President of the United States,
herewith returned."
"T. RINGGOLD, Marshal"
"
President's order of discharge"
"To the Marshal of the District of Columbia. Whereas John Gates,
Jr., of the County of Albany in the District of New York, is
confined and held in custody in the prison aforesaid in pursuance
of a certain judgment and execution obtained at the suit of the
United States, and whereas it appears to my satisfaction that the
said John Gates, Jr., is unable to pay the said debt for which he
is imprisoned, now therefore, by virtue of the power and authority
vested in the President of the United States by an Act of Congress
passed the 3 March, 1817, entitled 'an act supplementary to an act
for the relief of persons imprisoned for debts due the United
States,' I, James Monroe, President of the United States, do hereby
authorize you to discharge from your custody out of the prison
aforesaid the body of the said John Gates, Jr.."
"Given under my hand in the City of Washington this 5 March,
1819, and forty-third year of the independence of the United
States."
"JAMES MONROE"
Page 33 U. S. 153
The circuit court gave judgment in favor of the defendant, and
the United States prosecuted this writ of error.
Page 33 U. S. 160
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The United States brought a suit against the defendant in the
Circuit Court for the County of Washington in the District of
Columbia, and upon the trial of the cause, the following statement
of facts was, by the agreement of the parties, submitted to the
court for its opinion of the law thereupon.
"This is an action of assumpsit brought to recover the sum of
$345, money of the plaintiffs, which came to the hands of the
defendant as Marshal of the District of Columbia. Upon the
settlement of the defendant's accounts as marshal with the
Treasury, he claimed an allowance and credit for the sum of
$1,111.02, being the amount of his poundage fees on a
capias ad
satisfaciendum against John Gates at the suit of the United
States, and upon which Gates was arrested by the defendant as
marshal and committed to jail and afterwards discharged by order of
the United States. It is agreed that this claim was presented to
the accounting officers of the Treasury before the institution of
this suit and disallowed."
Upon this statement of facts the circuit court gave judgment for
the defendant.
The matter in dispute, in this case, being under the value of
$1,000, a writ of error has been specially allowed according to the
provisions of the Act of Congress of April 2, 1816 (Davis' Col.
305), and the cause comes here for revision.
Upon the argument here it has been contended by the Attorney
General on the part of the United States:
1. That by the laws of the State of Maryland, to which the acts
of Congress refer, the defendant, and not the plaintiff, is liable
to the sheriff, or marshal, for his poundage on the service of a
capias ad satisfaciendum.
2. That whatever may be the rule in respect to individuals, the
United States, under the general terms employed in the acts of
Congress and of the State of Maryland, is not liable to the
officer.
That the defendant is legally entitled to the fees claimed by
him as poundage upon the execution served upon Gates cannot be
denied.
By the Act of Congress of 27 February, 1801, Davis' Col. 125,
sec. 9,
Page 33 U. S. 161
it is declared that the marshal shall be entitled to receive for
his services the same fees, perquisites, and emoluments which are
by law allowed to the Marshal of the United States for the District
of Maryland.
And by the Act of Congress of 3 March, 1807, Davis' Col. 176,
provision is made for certain specified services by the marshal --
not, however, including poundage fees, but containing this general
provision
"That for such services as are not enumerated in this or some
other act of Congress, the marshal shall receive, for services
performed in the County of Washington, the like fees and
compensation as by the laws of Maryland in force on the first
Monday in December, 1800, were allowed to a sheriff of a county of
Maryland for the like services."
By the Maryland law of 1779, ch. 25, sec. 5, the sheriff, on the
service of any execution for money or tobacco, shall charge and
receive on the same at the rate of ten percentum for the first five
pounds and at the rate of five percentum for the residue, and no
sheriff shall be chargeable for any action of escape for more than
the sum of money really due or endorsed to be received on the
execution in discharge thereof.
If any doubt could exist whether an execution against the body
was included or intended to be included under the general terms
"any execution for money or tobacco," that doubt is removed by the
provision in relation to escapes, which can apply only to cases
where the party was held under an execution against the body.
This provision as to poundage is modified by a subsequent Act of
1790, ch. 59, sec. 2, which declares that instead of the poundage
fees to the sheriff by the act of 1779, he be allowed only at the
rate of seven and a half percentum for the first ten pounds, and at
the rate of three percentum for the residue, and this is the rate
at which the marshal has charged his poundage in the present
case.
Although the right of the marshal to poundage on a
capias ad
satisfaciendum, is clearly established by these laws, yet they
are silent with respect to the party who is liable to him for the
payment thereof.
In the case of
Fisher v. Beatty, 3 Har. & McHen.
148, in the Court of Appeals of Maryland, the question was made
whether on an execution the defendant is liable to the sheriff
Page 33 U. S. 162
for his fees, and the court decided that he was not. The grounds
upon which that decision rested are not stated, and in two other
cases in the same court,
Stewart v. Dorsey, 3 Har. &
McHen. 401, and
Madock v. Cranch, 4 Har. & McHen. 343,
the same question arose, but accompanied with circumstances that
did not call for a direct decision upon the point, though in the
latter case the court said the fees must be paid by the person who
issues the attachment. From these cases it would seem reasonable to
conclude that in the courts in Maryland it is held that the
plaintiff in the execution, and not the defendant, is liable to the
sheriff for his poundage.
If there is no statute making the defendant responsible for such
poundage, it follows as matter of course that it must be paid by
the plaintiff, and if the defendant is liable and cannot pay, the
plaintiff will be responsible. By the common law, costs are not
recoverable against the opposite party, and he who requires the
service to be performed must pay all legal charges for such
service. It may not, however, be amiss to observe that although,
from the cases referred to in the Court of Appeals in Maryland, it
is fairly to be inferred that according to the construction there
given to the statutes of that state on this subject, the plaintiff,
and not the defendant, is liable to the sheriff for the poundage
fees on a
capias ad satisfaciendum, yet a contrary
conclusion may well be drawn, if not necessarily implied, in the
provision contained in the fourth section of the Act of 1779, ch.
25, which declares that where any writ of
capias ad
satisfaciendum shall issue, poundage shall in no case be
demanded or taken upon execution of such writ or upon charging any
person in execution by virtue of such writ for any greater sum than
the real debt
bona fide due and claimed by the plaintiff
amounts to, which sum the clerk or the plaintiff, his agent or
attorney, shall and are hereby obliged to make and specify on the
back of such writ, and no sheriff shall be obliged to execute such
writ before such endorsement, and that the defendant in the
execution is liable for such poundage, is strongly fortified by the
recital in this section:
"Whereas it often happens that small sums only remain due upon
judgments given for great sums and penalties, and nevertheless, in
these cases, upon executing of writs of
capias ad
satisfaciendum, the sheriff demands and takes for his fee
poundage for
Page 33 U. S. 163
the whole money for which such judgments are entered, for remedy
whereof, be it enacted,"
&c.
But it is not necessary in the present case to decide whether in
any and in what cases the defendant in the execution would be
liable to the marshal for his poundage fees. For, admitting the
defendant to be liable, if the plaintiff releases or discharges
him, and thereby deprives the marshal of all recourse to the
defendant, there can be no doubt that the plaintiff would thereby
make himself responsible for the poundage.
2. The next inquiry is whether the United States in this respect
stands upon a different footing than private parties. It is said
the United States is not included in any general statute, but that
express provision must be made or the statute cannot apply to them.
But a sufficient answer to this is that the statutes of Maryland do
not, in terms, apply to individuals or private parties, or
designate which of the parties is liable for the marshal's
poundage. They only settle that the marshal is entitled to
poundage, and fix the rate of allowance. It is undoubtedly a
general rule that no court can give a direct judgment against the
United States for costs in a suit to which they are a party, either
on behalf of any suitor or any officer of the government.
25 U. S. 12
Wheat. 550, 6 Cond. 629. But it by no means follows from this that
they are not liable for their own costs. No direct suit can be
maintained against the United States. But when an action is brought
by the United States to recover money in the hands of a party who
has a legal claim against them, it would be a very rigid principle
to deny to him the right of setting up such claim in a court of
justice and turn him round to an application to Congress. If the
right of the party is fixed by the existing law, there can be no
necessity for an application to Congress except for the purpose of
remedy. And no such necessity can exist when this right can
properly be set up by way of defense to a suit by the United
States.
This rule is fully recognized by this Court in the case of
United States v.
Macdaniel, 7 Pet. 16. That was, like this, an
action brought to recover a balance, certified at the Treasury,
against the defendant, and he set up by way of defense a claim
which had been rejected at the Treasury for services as agent for
the payment of the navy pension fund, and to which claim this
Page 33 U. S. 164
Court thought him equitably entitled. It is there said by the
Court that this action is for a sum of money which happens to be in
the hands of the defendant, and the question is whether he shall be
required to surrender it to the government and then petition
Congress on the subject. The government seeks to recover money from
the defendant to which he is equitably entitled for services
rendered. This Court cannot see any right, either legal or
equitable, in the government to the money for the recovery of which
this action is brought.
If anything more could be wanted to show how entirely
unsupported the present suit is, it will be found in the discharge
given by the President of the United States of Gates, who was held
in custody by the marshal under the execution upon which the
poundage is now claimed.
This discharge, directed to the marshal, after reciting that
Gates had complied with the requisites of the Act of 3 March, 1817,
authorized him to discharge the said Gates from his custody and out
of the prison.
This law, 6 L.U.S. 247, gives to the President full power to
order such discharge upon such terms and conditions as he may think
proper, and the party shall not be imprisoned again for the same
debt.
The discharge in this case is absolute and unconditional, and
the marshal had no authority to hold him in custody afterwards. So
that, admitting Gates to have been liable for these poundage fees,
the marshal's power or right to compel payment from him was taken
away by authority of the United States, the plaintiff in the suit.
And the right of the marshal to claim his poundage fees from them
is thereby clearly established.
The judgment of the circuit court is accordingly
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court that the judgment of the said circuit court in this
cause be and the same is hereby affirmed.
