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
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
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.
Page 34 U. S. 25
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The United States had 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. The cause being at issue on the
plea of
nonassumpsit, the following case was agreed
between the parties.
"In this case, it is agreed that the suit is instituted upon a
transcript from the Treasury of the United States, which is annexed
to the record in a former proceeding originating in the District
Court of the District of Columbia, and brought before the Supreme
Court by appeal. And it is further agreed that the defendant shall
have the same benefit of the proceedings in said case as if the
same had been pleaded, or as if given in evidence upon the trial of
the general issues, and upon this statement judgment shall be given
as upon a case agreed, and either party be at liberty to refer to
the printed record in said case of
Nourse v. United
States, as if the same were fully incorporated into this
record."
The case referred to in this special statement grew out of a
warrant of distress issued by the Treasury Department on 14 July,
1829, directed to the Marshal of the District of Columbia,
commanding him to levy and collect the sum of $11,769.13 by
distress and sale of the goods and chattels of Joseph Nourse, late
register of the Treasury. This warrant was issued in pursuance of
the Act of May 15, 1820, "providing for the better organization of
the Treasury Department." The third section of this act enacts in
substance that
"If any 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
shall fail to render his accounts or pay over in the manner
required by law any sum of money remaining in the hands of
Page 34 U. S. 26
such officer, it shall be the duty of the officer charged with
the revision of the accounts of such officer, to cause the same to
be stated to the agent of the Treasury, who is required to proceed
against the delinquent in the manner directed in the preceding
section."
That section directs the agent of the Treasury to issue a
warrant of distress against such delinquent officer and his
sureties, directed to the marshal, who shall proceed to levy and
collect the money remaining due by distress and sale of the goods
and chattels of such delinquent officer, having given ten days
notice of such intended sale, and if the goods and chattels be not
sufficient to satisfy the said warrant, the same may be levied on
the person of such officer, &c.
The fourth section provides that if any person shall consider
himself aggrieved by any warrant issued under the act, he may
prefer a bill of complaint to any district judge, setting forth the
nature and extent of the injury of which he complains, and
thereupon the judge may grant an injunction to stay proceedings on
such warrant altogether, or for so much thereof as the nature of
the case requires, and the same proceeding shall be had on such
injunction as in other cases, except that no answer shall be
required on the part of the United States.
Under the authority given by this section, an injunction was
awarded by William Cranch, Chief Justice of the District of
Columbia and judge of the court of the United States for that
district, to stay all further proceedings on the said warrant.
In his bill, the complainant states that his public accounts as
Register of the Treasury of the United States, and agent of the
Treasury Department in disbursing certain funds, and settling
certain accounts of contingencies and other miscellaneous matters,
and as agent for the joint library committees of Congress, have
been settled at the Treasury since his removal from office, upon
which settlement a pretended balance has been found against him for
the sum of $11,250.26, for which a warrant of distress has been
issued by the agent of the Treasury, which has been levied on his
lands, tenements, goods and chattels by the marshal of the
district. That the said account is unjust and illegal, and so far
from any balance being due thereon to the United States, a
considerable balance should have been struck thereon in favor of
the complainant,
Page 34 U. S. 27
as appears by an account annexed to the bill, which he declares
to be just and true.
That besides his regular duties as register, he was, from the
year 1790 till his recent dismission from office, employed by the
proper department of the government in the separate business of
special agent for the disbursement of the contingent funds of the
Treasury Department, and for the settlement of the numerous
accounts connected therewith. These duties devolved upon him great
labor and responsibility, and occupied a great portion of his
private hours. When he undertook this branch of public employment,
no stipulation was made for the precise amount of compensation. The
usage of the Treasury and other departments of the government has
invariably been to allow commissions not only to unofficial persons
so employed, but to official persons and clerks of the departments
when such duties were distinct from the stated duties appertaining
to their offices. That he has regularly made out and presented his
account to the proper accounting officers of the Treasury, charging
his commission at the rate of two and a half percent on the amount
of his disbursements, which, if allowed, would leave the United
States indebted to him in the sum of $9,886.24, which he believes
to be justly due to him.
The complainant further states that he is advised that the act
of Congress under which the said warrant of distress is pretended
to have been issued, being a law in derogation of common right,
ought to be construed with the utmost strictness, but that on no
reasonable construction can this complainant or his accounts,
either as register of the Treasury or as agent of the joint library
committees of Congress, be brought within the description of
persons over whom that act gives jurisdiction to the agent of the
Treasury. The bill prays for an injunction and for further
relief.
The United States, in its answer, refers to and relies on the
general account of the complainant settled by the proper officer of
the government, by which he was found indebted in the sum of
$11,769.13. They admit that the complainant had rendered an account
charging a commission of two and a half percent on all the moneys
which had passed through his hands in the different agencies in
which he had acted, exhibiting a balance in his favor of
$9,367.87.
Page 34 U. S. 28
They deny the right of the complainant to a commission on the
moneys disbursed by him, and contend that they were authorized by
law to enforce the payment of the balance due to the government by
warrant of distress. They therefore pray that the injunction may be
dissolved and that they may be permitted to pursue their legal
remedies for the sum due to them.
The court determined that the said 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 $943,308.83, 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.
Some further proceedings were had in that cause which do not
affect the case now before this Court.
This suit is instituted on the same account on which the
distress warrant was issued, and against which the decree of the
district judge was pronounced. The defendant relies on that decree
as a bar to the action. The circuit court adjudged it to be a bar,
and that judgment is now to be revised in this 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 whom it is directed.
It would excite some surprise if, in a government of laws and of
principle, furnished with a department whose appropriate duty it 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
Page 34 U. S. 29
process, and levy on the person, lands, and 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. When it was perceived that the public interest required a
prompt remedy against public defaulters, the legislature was not
unmindful of the rights of individuals, and provided that this
remedy should not be used oppressively. The party who thinks
himself aggrieved may appeal from the decision of the Treasury to
the law, and prefer a bill of complaint to any district judge of
the United States setting forth therein the nature and extent of
the injury, who may grant an injunction to stay proceedings on such
warrant altogether, or for so much thereof as the nature of the
case requires. And the same proceedings shall be had on such
injunctions as in other cases, except that no answer shall be
required on the part of the United States.
Joseph Nourse, in pursuance of the permission given by this
section, did file his bill of complaint alleging, among other
things, that he owed nothing to the United States, and praying the
judge to enjoin all further proceedings on the warrant. The
injunction was granted, and the whole cause thus transferred before
the district judge, who was directed to proceed therein as in other
cases. He had consequently full jurisdiction over it. After a
reference to auditors, according to the course of courts of
chancery in matters of account, he pronounced his final decree
against the United States, and awarded a perpetual injunction. 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
Page 34 U. S. 30
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.
Aware of the difficulty of maintaining an action on a claim on
which a court of competent jurisdiction has passed a judgment,
still in force; the Attorney General questions the jurisdiction of
the district court, and rests his argument for the reversal of the
judgment of the circuit court chiefly on this point. He contends
that Joseph Nourse was not an officer contemplated by the act
providing for the better organization of the Treasury Department;
that the warrant of distress could not legally be issued against
him, and consequently that this is not a case in which the district
court can exercise jurisdiction. He refers to the bill of
complaint, which is drawn with a double aspect. It alleges that the
complainant is not indebted to the United States, and that, were it
otherwise, he is not an officer contemplated by the act against
whom a distress warrant can legally be issued.
This argument has been considered.
Did the case depend upon the question whether Joseph Nourse, in
any of the characters in which he is charged in the account
accompanying the warrant, was an officer subjected by law to this
process, some difficulty would exist in finding in the record
sufficient information on which to decide it. The following are the
items of the account. To balance due,
As agent for the joint library committee of Congress . . . . $
2,502.55
As agent for paying the expenses of stating and printing
the public accounts. . . . . . . . . . . . . . . . . . . .
934.98
As agent for paying the superintendent and watchmen of
the buildings occupied by the state and Treasury
Departments. . . . . . . . . . . . . . . . . . . . . . . .
1,325.41
As agent for paying the expenses of printing
certificates of the public debt. . . . . . . . . . . . . .
1,011.29
As agent for paying the contingent expenses of the
Treasury department. . . . . . . . . . . . . . . . . . . .
5,994.90
----------
$11,769.13
Whether in any or all of these agencies, Joseph Nourse acted
Page 34 U. S. 31
as an officer against whom a distress warrant could legally be
issued, for any sum in which he might be found a defaulter, the
record does not furnish the means of deciding clearly. But the
district court took no notice of that part of the bill which
suggests this objection. It acted on the merits of the case, and
decreed against the United States on those merits.
Still, however, the Attorney General contends that in so doing,
it transcended its jurisdiction, and has taken cognizance of a case
which could not legally be brought before it. This is founded
entirely on the assumption that the warrant was issued against a
person not liable to it.
Let this be conceded.
It would be strange indeed if the legislature, intending to give
a prompt remedy against a particular class of debtors, should
carefully guard that class against any abuse of the remedy, and yet
leave all other persons, whether debtors or not, exposed to that
abuse; that an officer liable to the process should be enabled to
correct it, if it issued injuriously, by appealing to the law; and
yet that an individual not liable to the process, should be
compelled to submit to the oppression and to suffer the wrong.
The act is not chargeable with this inattention to the rights of
individuals.
The sections which regulate the proceedings of the Treasury
Department on the warrant, contemplate the officer against whom it
may be issued, and confine it to him; but when the legislature
turns its attention to the individual against whom it may issue,
the language of the law is immediately changed. The word "person"
is substituted for officer, and the act 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 this part of the act. 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.
Page 34 U. S. 32
The district court then had complete jurisdiction over this
case, and its decision is final. The judgment is consequently a bar
to any subsequent action for the same cause.
The judgment of the circuit court is 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 adjudged and ordered
that the judgment of the said circuit court in this cause be and
the same is hereby affirmed.
