Armstrong v. United States

1 F. Cas. 1147

Opinion

HOPIvIX SON, District Judge,

delivered the following opinion:

On the 24th day of April, 1828, Andrew Armstrong, the complainant, was appointed, by the president, by and with the advice and consent of the senate of the United States, navy agent for the port of Lima, in Peru, in South America. The commission which testifies this appointment bears the date above mentioned, and declares that it is "to continue in force during the term of four years from the 24th of April, 1828.” The letter of instructions given to Mr. Armstrong, from the navy department, is dated on the 10th January, 1829. By the act of congress passed on the loth May, 1820, [3 Stat. 592,] it was enacted that navy agents, with other officers mentioned in the act, “shall be appointed for the term of four years, but shall be removable from office at pleasure.” In April, 1S30, the president revoked the commission or appointment of the complainant, but the notice of the revocation, contained in a letter from the secretary of the navy of that date, did not reach the complainant until October following. He continued to reside at Lima until January, 1832, when he left it to return to the United States, going first to Valparaiso, from which port he sailed in March. On a settlement of his accounts with the government in July, 1832, a balance was struck against him of twelve thousand nine hundred and forty-nine dollars and sixty-three cents, which, by a subsequent small credit, was reduced, in August, to the sum of twelve thousand eight hundred and seventy-five dollars and forty-four cents, now claimed by the United States. On the other hand, the complainant has presented an account or claim for credits against the United States, which, if allowed him, will not only absorb the whole demand upon him, but will turn the balance in his favour to the amount of four thousand six hundred and eighty-one dollars and. seventy-four cents. The United States, to enforce the payment of the amount they allege to be due to them from the complainant, proceeding under the directions of an act of congress passed on the 15th day of May, 1820, [3 Stat. 592,] have issued a warrant of distress against the alleged delinquent officer and his sureties, directed to the marshal of this district, in which the said officer and his sureties reside. This warrant has been executed by the said marshal according to the provisions of the said act. By the fourth section of the act, “if any person shall consider himself aggrieved by any warrant issued under it, he may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge aforesaid may, if in- his opinion the case requires it, grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires.” Under this provision the complainant filed his bill of complaint, whereupon, he having complied with the requisitions of the act, an injunction was issued to stay proceedings on the warrant of distress. The district attorney has filed a full answer to all the matters complained of in the bill, and the cause has been heard on this bill and answer, with the vouchers and other evidence produced by the parties respectively. The complainant complains of the rejection or refusal of certain credits in the settlement of his accounts with the government to which he alleges he is entitled in law or equity; and the district attorney denies altogether his right in law or equity to any of the allowances he claims, and prays that the injunction may be dissolved, so that the marshal of this district may proceed, under his warrant of distress, to levy and collect the said sum of twelve thousand eight hundred and seventy-five dollars and forty-four cents, remaining due from the complainant to the United States. It is now to be decided, so far as this court may decide it, whether the said injunction shall be continued altogether, or dissolved altogether, or in part; and, if the latter, for what amount it shall be dissolved, and the United States be permitted to proceed under their warrant of distress against the complainant and his sureties. To determine this question, it is necessary to examine every item of credit claimed by the bill and denied by the answer.

The first credit claimed by the complainant, which has been refused to him by the accounting officers of the United States, is a charge of five thousand seven hundred and fifty-five dollars and eighty-six cents, being for commissions on his disbursements of moneys as navy agent at Lima. On these disbursements an allowance has been made to him of one per cent., and the present claim is for an additional or further allowance of four per cent., making a commission of five per cent, in the whole. On the part of the government it is contended, that a navy agent of the United States, whether he reside abroad or at home, is entitled to no more than one per cent, on his disbursements of moneys, by the express enactment of the act of congress of 3d March, 1809, [2 Stat. 535.] On the other hand the complainant avers, that he was not appointed under that act, and is not subject to its provisions nor bound by its restrictions, but is entitled to a compensation for bis services according to tbeir nature and extent and the usual mercantile commissions for similar services at the same place, which were five per cent. The real question on this part of the case is, whether the complainant was appointed a navy agent under and subject to the act of congress of 3d March, 1809, or not; for, if he were so, that act, after declaring the manner in which agents shall be appointed for the disbursements of moneys for the use of the navy of the United States, authorises the president to fix the number and compensations of such agents; “provided, that the compensation allowed to either shall not exceed one per centum on the public moneys disbursed by him.” If, then, the complainant was a navy agent described by the said act; if he received his appointment and authority under and by virtue of it; he must be bound by all its provisions. The argument on this item has, therefore, been directed to this question.

The attorney for the United States has contended that the complainant was an officer of the United States, not the agent of a department; that he was a navy agent of and for the United States, appointed as such by the president and senate by virtue of the act of congress referred to; that previous to that act no appointments or commissions of such agents were ever given by the president, or by the president and senate, as this was, and as this act directs; that previous thereto, persons had been, from time to time, appointed by the secretary of the navy, at his pleasure, to perform certain prescribed duties for his department, under such contracts and arrangements as he chose to make with them; but that the appointment of the complainant was clearly not of this description, but was made, or could have been made only under the act of 1809. The counsel for the complainant deny that he was an officer of the United States at all; they deny that he was appointed to the service he performed under the authority of the act in question; but that his services were performed for the navy department, in the same manner, by the same authority, and with the same rights of compensation as the agents that had been appointed by the secretary of the navy at other places. The cases of, and allowances made to, Messrs. Hogan, M’Call and others, have been much insisted on as forming precedents for this; and the distinction relied upon between such agencies as are, and such as are not, within the regulations of the law of 1809 is, that they are to be applied only to those navy agents whose duties are to be performed in the United States; not to those who must reside in a foreign port.

After giving a close and careful attention, to the arguments and illustrations of the counsel for the complainant, I cannot follow thorn to their conclusion. It appears to me to be entirely clear that the appointment of the complainant, as a navy agent at Lima, was an office of the United States,, and not a mere limb of the navy department; that he was an officer of the United States deriving his authority from the constitutional appointing power, the president and senate; that their power to appoint navy agents, was derived from the act of congress which created or established the office. Previous to the passage of the law of 1809, there were-no such officers, either at home or abroad, properly so called, under the constitution of the United States. The constitution gives, the power to the president to nominate, and, by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. In conformity with this provision of the constitution, congress have established, by law, the office of navy agents, and the president, with the-senate, has appointed the officer. Prior to this law the purchase of supplies and the-disbursements of moneys for the use of the navy, were made, directly or indirectly, by the secretary or his agents; the state of the navy did not require a distinct office and officers for these purposes. These duties or-services were performed by persons named for the occasion by the secretary, and, as I have said, they were his agents, his arms, and not officers of the government. They were neither appointed nor removable by the-president, any more than a clerk in the department; their agency began and ended with the pleasure of the secretary, or with the-particular service for which they were employed. As our naval establishment was extended, and these services became numerous and important; as the operations of these-agents became of great magnitude, involving the expenditure of vast sums of money; it was wisely thought they should no longer-be entrusted to the agents of a department, irresponsible in some degree directly to the-government, and without any security beyond their own responsibility, for the faithful performance of their trust. The patronage, too, may well have been thought to be-of too high a character and value to be attached to a department. The law of 1809 was intended to put these concerns under-a better regulation. The third section enacts, “that exclusively of the purveyor of public supplies, paymasters of the army, pursers of the navy, military agents, and other officers already authorized by law, no other-permanent agent shall be appointed, either-for the purpose of making contracts, or-for the purchase of supplies, or for the-disbursement, in any other manner, of moneys for the use of the military establishment, or of the navy of the United States, but such as shall be appointed by the president-of the United States, with the advice and consent of the senate.” It is then enacted that the president may fix the number and compensation of such agents, but with a limitation as to the latter, “provided that the compensation allowed to either shall not exceed one per centum on the public moneys disbursed by him.” The fourth section requires a bond from the agent, with one or more sufficient sureties, for the faithful discharge of the trust reposed in him. All this appears to me to be very intelligible. We see no intimation of the distinction, essentially and necessarily relied upon by the counsel of the complainant, between foreign and domestic agents, in the mode of appointment, the tenure and permanence of their offices, or the terms on which they may receive them. The construction contended for, taking the foreign agents altogether out of the act, would not only deprive the president and senate of their appointment, but dispense, in their case, with the security to be given for the faithful discharge of the trust reposed in them, as well as of their limitation of the compensation to one per centum on them disbursements. As regards the bond or security, it would seem to me, to be infinitely more necessary in the case of a foreign than a home agent, who is always under the eye and control of the government, whereas the other carries on his operations in a distant country, and might bo guilty of the grossest irregularities and frauds for a long time, before they would be known; and when known the delinquent would be out of the reach of the government with all his spoil. It has not been pretended that domestic agents are not subject to the provisions of this law, for this would be to repeal it wholly as to all navy agents, and I think it has not and cannot be shown, that any distinction is made by the law, or by the reason and design of the law, between the agents appointed for foreign or home stations. These are equally within or without the law; they are both clearly within it, in their appointments, their duties, their responsibilities, and their compensation.

It has been argued, with great earnestness, that this act has relation only to permanent agents, and that a navy agent abroad is not a permanent agent, for he is removable at the pleasure of the executive, and, in fact, in this case a removal was made in fifteen months, whereas the foreign agents appointed before the passage of this law continued undisturbed for many years. The first difficulty this argument has to encounter is, that it applies with the same force to the agents at home, who hold their offices in the same way, and may be removed by the same power that acts upon those abroad: and thus the distinction so carefully set up between foreign and domestic agents is overthrown. What is the meaning of a permanent agent as understood in the law? Certainly it does not designate the place of residence as affecting the description. Gan we say that the complainant was not a permanent agent because he was removable, or because he was actually removed, by the president? Does the legal character or description of the appointment depend upon the exercise of the right of the president over the officer? This is clearly not the meaning of' the law, as is apparent from the act of 15th May, 1820, which enacts, that ‘navy agents,’ with other enumerated officers, “shall be appointed for the term of four years, but shall be removable from office at pleasure.” The navy agents here referred to are certainly those which are appointed under the law of 1809 by the description of permanent agents. The phrase then ‘permanent agents,’ signifies those agents which shall be appointed by the president, with the advice and consent of the senate, in contra-distinction to those persons who had been or should be appointed by the secretary of the navy, on some special occasion or service, in his discretion and on such terms as he, on his official responsibility, should choose to arrange and make with the persons so appointed by him. The officer who takes his appointment from the president and senate, under the constitution and law of the United States, testified by his commission, which makes him independent of the secretary, and removable only in the manner and by the power given by the constitution and the law, may well be considered, legally, to be a permanent officer or agent of the United States. When the law declares that no permanent agent shall be appointed but by the president and senate, it, in effect, declares that the agent who is so appointed, is, within the meaning of the law, a permanent agent. The district attorney is a permanent officer of the government, although removable at pleasure, and commissioned just as a navy agent is, in contra-distinction to a special or temporary attorney, who may be employed for a particular cause or service. The cases of Messrs. Hogan and M’Call have been frequently urged upon the court in the argument. It might be enough to answer that they clearly were not appointed under the law of 1S09; but made their contracts with the secretary of the navy for the services they undertook to perform. They were not officers of the United States; they were not appointed as such officers must be. They did not derive their agencies, such as they were, from the president and senate, nor were they appointed under the authority of the act of congress. Contracts were made with them by the secretary of the navy under a discretionary- power exercised by him. It is true that abuses may be practised in this way; but they are not to be presumed. It is true that under the pretence of making a special agent, under a special contract, a navy agent may be placed in a foreign port by the secretary, with any rate of compensation lie may agree to, and 'without the securities required by law from navy agents for the faithful discharge of their trust, and such an agency may be continued for many years, as has been done, performing all the duties of a permanent navy agent and no more. Such cases might be an evasion of the provisions of the law by the secretary; but they are always under the control of the president, who, by appointing a permanent agent, would supersede the special agency. The complainant in this case went abroad, not with any such special contract in his pocket, but with his commission as the only evidence of his appointment; the only source of his authority. This commission was given to him under the law of 1809; it could have been given to him under no other legal authority, and he took it as an appointment under that law, and subject to all its provisions. I am of opinion that he is entitled to no more than one per centum on the moneys disbursed by him for the use of the navy of the United States; and, of course, that he cannot be allowed the credit he now claims of an additional four per. cent., amounting to the sum of five thousand seven hundred and fifty-five dollars and eighty-sis cents. The one per cent, he has already received a credit for.

I have said nothing of the alleged conversation between the complainant and Mr. Hay, a clerk in the navy department. Our knowledge of it and of the time it occurred, is by no means satisfactory; but no such conversation, nor any opinon or representation of Mr. Hay, or any other officer of the government, can have any effect upon the pro-visons of the act of congress. If the complainant can show that he accepted his commission in consequence of these representations of Mr. Hay, he may have a ease for the equity of congress; but we are bound to obey the law.

The next credit claimed by the defendant, and which has been rejected by the accounting officers of the treasury, is a charge of commissions on the distribution of stores, amounting to six hundred and sixteen dollars and twenty-three cents. There is another claim on the same account of four hundred and twenty-seven dollars and seventy-six cents. They will be considered together. The act of 1809, which creates the office of a navy agent, has also fixed his compensation wholly or in part. We must recur to it for the decision of the question- on .the distribution of stores; obeying the directions of the law, where they are clear and explicit, and giving it a fair and reasonable construction where they are not so. It enacts, that the president may “fix the number and compensation of such agents; provided that the compensation to either shall not exceed one per cent, on the public moneys disbursed by him.” There is, in my mind, something equivocal in this form of expression. Does it mean that the whole compensation of the agent, for all his services, shall not exceed one per cent, on the moneys he shall disburse; or that the compensation for or on account of his disbursement of moneys shall not exceed that rate Perhaps the more strict and the more obvious construction of the words, as they stand in the law, would be that the whole compensation, for all the services of the agent, shall be one per cent, on the moneys disbursed by him. But it is not explicitly so said; and if we are permitted to resort to construction, as in a doubtful clause, it does not appear to be the most equitable interpretation of it What is the difference in labour or responsibility, between distributing stores, and disbursing moneys for the use of the navy; unless we should say that the first is the more laborious and troublesome of the two. They are distinct services in every respect, and why should they be confounded in their compensation? If we look to the practice, under contracts made by the secretary with his agents, these subjects of service have been kept separate, and a commission charged and allowed for each. I must be understood to comprehend in this view only, such stores as were sent out by the government to the agent to be distributed by him to ihe navy, and not those which have been purchased by him, and for which he has already received his compensation in a charge of commission on the moneys disbursed for the payment. The charge now made by the complainant is understood to be only for the stores furnished by the government.

If we adopt a more rigorous construction of the law, and allow to an agent nothing but his commissions on the disbursements of money for all his services, a case of manifest injustice might occur. The location of an agent might be such, that it would be more convenient or economical for the government to send him every thing, or nearly so, that could be there wanted for the use of the navy; he would then have little or no money to disburse; while his labour in taking care of the stores and distributing them would be very great and unrewarded. By -turning to the third section of the act, which creates this office, the duties of the officer, in the view of the legislature, and to which the stipulated compensation may be supposed to refer, are as follows: the “making of contracts, the purchase of supplies, and the disbursements of moneys for the use of the navy.” No stores or supplies seem to have been contemplated by this law, but such as were purchased by the agent, and for which, of course, he had received his commission on the disbursements in making the purchase. - But the distribution of stores or supplies not purchased by him, and for which service he. has, in no shape, received any compensation, seems not to have been considered or distinctly provided for in the description of the duties to be performed by the agent, or in fixing his compensation for his services. Ia the credit now claimed, such a one as the head of the department -was authorised to allow, in the exercise of his equitable discretion in the settlement of the accounts of a public officer? Or is it so clearly prohibited by the act of 1809, that to allow it would be a violation of that law? In the latter case neither the secretary nor the court has any power over it; in the former, the court may do whatever the secretary might have done. We may give the credit, if we are satisfied I to consider the service for which it is claimed, as a casus omissus in the law, not provided for by it, and not within the restric- | tion of compensation there imposed. In such j a case we may consider the equity of the j claim arising from the performance of a i service, for which no remuneration has been ! made, and its allowance or disallowance . would be subject to the discretion of the i court under all the circumstances of the case. It is not a credit of positive right, for it is not promised by the act of congress, or by any contract with the government; and its allowance, as an equitable charge, will always depend upon the facts upon which the equity is founded. Such an equity may be found in one case and not in another; and j each will be governed by its own circum- : stances. On this item, I have concluded, not ¡ without much doubting, to allow a commis- ■ sion of one per cent, on the value of the j stores or supplies distributed by the com- j plainant, and not purchased by him, but fur- | nished by the United States. The credit i claimed in his account, is five per cent, or j ten hundred and forty-three dollars and ! ninety-nine cents; the allowance will be one j fifth of that sum, or two hundred and eight dollars and eighty cents. As connected with this part of the case, I will dispose of the charge of one hundred and eighty-three dollars and twenty-four cents, commissions on stores and provisions delivered over by the complainant to his successor, Philo White. This charge is wholly inadmissible. It has none of the considerations in its favour which have influenced my decision on the last two items. The whole service was probably the delivery of a key to Hr. White. It was his duty to put his successor in possession of the public stores, and can afford no ground for a commission, on any principle of the most liberal equity.

A charge for clerk hire is not deemed, at the treasury, to be an improper credit to the complainant, and one thousand dollars have been allowed for that object. The balance two hundred and sixty-eight dollars and seventy-five cents, was rejected as an excess of what was thought to be a necessary or reasonable expenditure on this account. The complainant has exhibited receipts showing that the whole amount claimed by him has been actually paid to his clerks. He asks only for reimbursement. It must be allowed, as there is no evidence of any bad faith or wanton extravagance in the expenditure.

The sum of eight hundred and sixty-three dollars and thirty-three cents, is claimed for damages and interest paid to Alsop & Co. on a bill drawn by the complainant on the secretary of treasury, on the 10th August, 1830, which was protested for non-acceptance and non-payment. The protest of this bill was permitted by the government under a mistake of the facts concerning it. The complainant, while legally acting as navy agent, had an unquestionable right to draw bills on the government; and many had been drawn and paid. The only reason for refusing this, was a suspicion or belief that it had been drawn after the complainant had notice of the revocation of his appointment, and, of course, after his right to draw had ceased. This was altogether a mistake. The letter of revocation was dated in April, 1S30, but did not come to the knowledge of the complainant until October following, several weeks after the date of the bill, which was, therefore, rightfully drawn. When the truth of the transaction was known, the bill was paid; but the damages, which were paid by the complainant in consequence of the protest, by the mistake of the government, and for no fault in the complainant, have been withheld, and the loss thrown upon him. I cannot see on what principle of law or equity this has been done. In such a case, between a factor and his principal, can it be doubted that the factor would be entitled to a full reimbursement of such a payment. This credit must be given to the complainant.

The next two items will be considered together. They are so manifestly unsupported by the facts and reason of the case, that it is a subject of regret as well as surprise, that the complainant should have introduced them into his account. The first is a charge of sixteen hundred and nine dollars and eighty-seven cents, for his board during his detention in Lima, owing to the protest of his bills, say from the day he ceased to be navy agent, the 1st of October, 1830, to the 20th of January, 1832, at three dollars and thirty-seven cents per diem. The second is a charge of three thousand two hundred and twenty-nine dollars and fifteen cents, for his compensation for the above time, at the rate of two thousand five hundred dollars per annum.

As to the detention at Lima, owing to the protest of his bill, if we could agree that the protest of this bill, drawn by him as an officer of the United States, and for the payment of which he was not responsible, could afford a reason for his remaining at Lima at the charge of the United States, it is not to be doubted, on the clear evidence of the case, that he did not remain there for any such reason, but for his own purposes, or at least, at his own pleasure. He remained at Lima, after notice of his removal from office, eight months before he knew of the protest of his bill, and during that time he had not any suspicion that it would be protested. Yet these eight months are a part of the period during which he alleges that he was detained at Lima, “owing to the protest of his bills.” Again, he was informed of the payment of the bill in October, 1831, but his charge for detention runs on to the 20th of January, 1832, and he did not actually sail for the United States until March, 1832, either because he was attending to business of his own, or, it may be, waiting for a suitable conveyance. In the face of such facts I cannot admit that the protest of the bill had anything to do with his remaining at Lima; and if it had, I do not see that the protest made such a necessity for his detention, as to raise a claim against the United States for it.

The claim of compensation, amounting to three thousand two hundred and twenty-nine dollars and fifteen cents, for services as navy agent, after the revocation of his appointment and during the alleged detention at Lima, is still more unreasonable. The claim is made for the time between the 1st of October, 1S30, and the 20th of January, 1832. Now it is not questioned that Philo White, the official successor of the complainant, arrived at Lima, took possession of the stores, and assumed all the duties of the appointment, in May, 1831; and yet, in the face of this fact, the complainant has made a charge as an acting navy agent, until January, 1832, full eight months after he had ceased to have any connection with the office, its duties, or services. It is true that when, in October, 1830, the revocation of the complainant’s appointment came to Lima, he was requested by Commodore Thompson, to continue to act as agent, as his substitute had not arrived, in procuring supplies for the squadron, and taking charge of such stores as might be sent out for its use. We may presume that he did so. But what were the services he performed under this appointment or request of Coinmodore Thompson? Merely to procure supplies, and receive and distribute stores. For these he has been paid by his commissions on the moneys dis- ■ bursed for the purchases, and on the stores distributed by him. I cannot but observe that in the same account, in which he has charged a commission of five per cent, for these services, he has also claimed a compensation for them, in the shape of a salary, at the rate of two thousand five hundred dollars a year.

I have felt a strong disposition to allow the credit of three hundred and fifty dollars paid by the complainant for his passage home. He left his country, and his business and prospects here, whatever they were, under an appointment by the government, which purported, by the terms of his commission, to continue for four years, and as much longer as the office and his services might be thought useful and acceptable. It is true he had no legal right even to this period of enjoyment, but he had a reasonable expectation of it, provided he gives no cause for disappointment by his own conduct. No complaint seems to have been made of his ability or fidelity, and he had been but about fifteen months in the enjoyment of the place, when his appointment was revoked. Under such circumstances, we can see and feel that a strong moral equity arises, to bring him back to the place he was taken from. Between individuals, a conscientious and just man would, I think, have done so. But no instance has been shown, under any such circumstances, of the recognition of a right, legal or legally equitable, in an officer who has been removed, or whose office has been vacated, to charge the government with his return home. I am afraid to set a precedent contrary to all usage, and must disallow this credit or charge. So with the complainant’s traveling expenses in going to Washington to settle his accounts. The only remaining item or charge in the complainant’s account, is for the tobacco sold or furnished by him to the United States, amounting to four thousand two hundred and seventy-nine dollars and sixty-eight cents. I can have no hesitation in allowing it.

In the letter of the secretary of the navy, to the fourth auditor, of the -25th June, 1S32, he says, the tobacco must depend on the fact whether the authority to purchase was revoked generally; and whether the revocation reached the Pacific station before this purchase was made. If not it should be allowed; otherwise it should not. This is a very partial and imperfect view of the question; and it is probable that all the facts of the case were not known to the secretary. We have them now in evidence. The answer of the United States to the bill of the complainant does not deny or admit, that a report of this tobacco was made by the complainant, in his accounts, to the department, nor that it was surveyed by order of Commodore Thompson, as part of the public stores of the United States, and, as such delivered over by the complainant, to the successor in office, and regularly receipted for by him on behalf of the United States. But it is insisted, that if all these things are true, they do not authorise the charge. And why? Because it is denied that the tobacco was purchased on public account; or by authority or instructions of any officer of the government; and it is averred that tobacco is not an article which a navy agent is au-thorised to purchase on public account, but that it is to be furnished to our ships by the pursers as part of their stores. It is also averred that the tobacco was the private property of the complainant, shipped to him from Norfolk, on his own account, and still remains his private property, and has never been accepted or legally transferred to the United States; that the navy department has never received any part,of it, or interfered with it, or done any thing to recognise the validity of any transfer oi purchase thereof; and that no officer of the department or the navy, had any authority to do so.

In answer tp all these denials and aver-ments, what are the plain and uncontra-dicted facts of the transaction? This tobacco was originally purchased In Virginia, •as the United States allege, as the private property of the complainant; after its arrival at Lima, it was sold by him to a Mr. M’Culloeh; it was afterwards re-purchased by the complainant, as he alleges, for the United States. A part of this tobacco was distributed or delivered by the complainant, before his removal from office, to certain ships of the United States, and the residue, remaining in the store of the United States, was handed over, with the other stores, to Mr. "White, the successor of the complainant, having been first surveyed by order of Commodore Thompson. From that day to this not a pound of it has been in the possession or under the control of the complainant; but that which has not been consumed in the ships of the United States,' has continued in the possession of their agent. Why need we inquire whether, by the regulations of the navy, tobacco is to be furnished to our crews by a navy agent or a purser? If such be the regulation, undoubtedly it would have been a good and sufficient reason for refusing to receive this tobacco, either on board of the ships, or as part of the stores ■of the United States, and for leaving it on the hands of the complainant, for profit or loss as might happen; but it can never afford a justification for receiving the article, for actually consuming a part of it, and for. retaining the residue, and refusing to pay for it. As for that part which has been delivered to the ships, a credit has been allowed, and thus far, at least, the purchase and sale have been recognised and adopted by the department, notwithstanding the alleged navy regulation. In what respect, or on what principle of justice or equity, does the part of the tobacco, for which the complainant has been allowed a credit, differ from that for which it has been refused. The first was delivered to the pursers of the ships and has been consumed by them crews; the other has been delivered to their agent au-thorised to procure supplies for the navy, and has been by him distributed to the ships, or is still retained by him as the property of the United States. If he was not au-thorised to receive it, let him answer for it. It is enough for the complainant that he did receive it, and has receipted for it as the agent of the United States, and on their behalf. Suppose' we should consider that the complainant was not warranted as a navy agent to make the purchase from Mr. M’Culloch for the United States. The consequence is, that it was his own property, and by him sold and delivered to Mr. White, who was the agent of the government. Is it any answer to the seller of an article to such an agent, to tell him that, by the navy regulations, the pursers and not the navy agents are to furnish tobacco to our ships, and therefore the United States may keep and use the article but are not bound to pay for it? This cannot be. If the tobacco was received from the complainant as public stores, then he has a right to charge for it the price he gave for it; if it was a sale by him to the public agent, then he has a right to receive its fair price or value for it, and we have no better way of ascertaining it than by taking the actual cost of it to him. I cannot deny that a suspicion hangs upon my mind, that the sale to Mr. M’Cul-loch was not a real transaction, but a contrivance to enable Mr. Armstrong to sell his tobacco to the United States at an advance or profit on its cost, which, as a public agent, he was not authorised to do. If this were clearly shown, it would have no effect on the case other than to deprive him of th.e profit, a few cents a pound, and compel him to pass it to the United States at its first cost in Virginia, and the charges of taking it to Lima. The evidence is not sufficiently explicit on this point, to enable me to take this ground; and the objection has not been made at the treasury, from which, I presume they were satisfied in relation to it. I have, therefore, allowed the credit for the sum claimed in the complainant’s account.

Decree: This cause coming on for filial decision upon the bill, answer, replication, exhibits, depositions and other evidence: It is ordered, decreed and adjudged that the injunction heretofore granted in this cause, be and the same is hereby perpetuated, for and as to the sum of five thousand six hundred and twenty dollars and fifty-six cents, part of the sum or charge of twelve thousand eight hundred and seventy-five dollars and forty-four cents claimed by the defendants of and from the complainant, and for the recovery of which the warrant of distress in the bill mentioned was issued; and that the said defendants be and they are hereby perpetually enjoined from proceeding further against the complainant upon the said warrant of distress, for or on account of any claim or demand of and for the said sum of five thousand six hundred and twenty dollars and fifty-six cents. And it is further ordered, decreed, and adjudged, that the said injunction be dissolved, and it is hereby dissolved, for and as to the sum of seven thousand two hundred and fifty-foui dollars and eighty-eight cents, the balance or remaining part of the said sum or charge of twelve thousand eight hundred and seventy-five dollars and forty-four cents, for the recovery of which the said warrant of distress was issued.

The following statement, to be filed with the decree, having reference to the account or claim of credits -which accompanies the bill of the complainant, exhibits the items of that account which have been allowed and disallowed to him, in mating the above decree.

He has been allowed

A commission of one per cent on stores distributed.. $ 2OS SO

Clerk hire.. 268 75

Damages on protested bills. 863 33

For tobacco delivered to the United States navy... 4,279 68

5,620 56

He has not been allowed

Commissions rejected at the last settlement . ? 5,755 S6

His board while detained at Lima.. 1.609 87

Compensation for the same time.. 3,229 15

The two items for distribution of stores together. 1,043 99

His passage home. 350 00

Traveling to Washington, two items 43 50

Commissions for stores handed over to Philo White.'.. 183 24

Commissions on $S0, paid to Mr. Henderson. 4 00

812,219 61