Ex parte Randolph

20 F. Cas. 242, 2 Brock. 447

Opinion

BARBOUR, District Judge.

This is a ha-beas corpus, issued by this court, upon the-application of Robert B. Randolph, alleging that he was imprisoned by the marshal of the Eastern district of Virginia, without lawful authority. The marshal returns as-the cause of the detainer of the party, a warrant of distress, issued by the solicitor of the treasury of the United States, against' Randolph, for a sum of money, stated in the warrant to be due from him to the United States, and which he has failed to pay in the maimer, and at the time required by law; which warrant was issued under the third section of the act of the 15th of May, 1820, concerning the treasury department. From the warrant, and the account annexed to it. and referred to, as part of it. it appears that the sum claimed from the party, is claimed as being due from him, a lieutenant in the navy, as acting purser, on board the frigate Constitution, for his transactions in that character in the year 1828. It appears, from another document produced by the party, duly authenticated by the fourth auditor, and sanctioned by the comptroller, that Randolph had, in October, 1828, settled his account as acting purser on board the Constitution; but, notwithstanding this previous settlement, the account on which the warrant of distress was issued, under which the party is imprisoned, is one stated at the treasury of the United States, in February, 1833, against him as late acting purser of the frigate Constitution, for the same period •embraced in the account above mentioned to have been settled in October, 1828; the present fourth auditor of the treasury, having opened the former account, and re-stated it, so as to produce the result stated in the account of February, 1S33, before mentioned, upon the ground, as appeal's from the face of this last account, of the subsequent discovery of eiTors and omissions, since the settlement of that of 1828.

Upon this state of facts, the party’s counsel have argued, that he is entitled to be discharged; and in the course of the argument, have brought into discussion, many and various points, the first of which is of the gravest import: it calls in question, directly, the constitutionality of the act of congress, under which this proceeding is had. The decision of a question of this sort, is certainly the highest, and most solemn function, which the judiciary could be called upon to perform; for, as was said with sententious brevity by the court, in one of the earliest cases on this subject, it involves the iu’quiry, whether the will of the representatives, as expressed in the law, is, or is not, in conflict wilh the will of the people, as expressed in the constitution. Great, however, as is the responsibility involved in this exercise of judicial power, I should meet it without difficulty, if it were necessary to the decision of this cause. But I fully concur in the sentiment of counsel, that whilst, on a proper occasion, it ought to be met with firmness, on fhe other hand, it is the part of wisdom, to decline the decision of such a question when not necessary.

From the view ■which I have taken of this case, I do not consider it necessary, and shall therefore pass it without further remark. It is wholly irrelative to the merits of this case, to inquire, whether there may not have been error committed by the auditor, in the stating of the account, on which this proceeding is founded; because, we are not sitting here, to reverse this case, as an appellate court, on a writ of error, nor, is it before us, as the proceedings of special jurisdictions iu England are before the king’s bench, by certiorari. In either of those aspects, the decision which we should be called upon to make, would depend upon the result of the inquiry, whether there was, or was not, error in the proceedings; but, sitting as we are, upon a habeas corpus, the question is not, whether there is error in the proceedings, but, whether there was jurisdiction of the case, in the auditor of the treasury.. It was settled as early as the great Marshalsea Case, iu 10 Coke, 76, and the principle has never been departed from, that where a court has jurisdiction, and proceeds in verso ordine, or erroneously, there the proceeding is only voidable; but where the court has not jurisdiction of the case, there the whole proceeding is coram non judiee, and void: the books, both English and American, abound in cases exemplifying this principle. But a habeas corpus will not lie, where the imprisonment is under voidable process, but only where it is merely void; for void process is the same thing as if there were none at all; and then the party is in effect imprisoned, without any authority whatever. Hence, the question would seem naturally to .arise, whether the auditor had jurisdiction in the case — in other words, whether the person and the subject matter are such as to bring the case within the provisions of the act of congress — for these are the criteria of jurisdiction. This question was elaborately argued at the bar, and I have considered it with great care. I forbear, however, to enter into the discussion of it here; because, although it should be clearly made out, that the auditor had once had jurisdiction, yet upon the facts in this case, another question arises, which, in my opinion, is decisive of the case; and that is, after the auditor shall once have settled an account of a public officer, and closed it, as in this case, is it competent for him at an after time, upon an allegation of error, or omission, or for other cause, to open it, restate it, and upon the account thus re-stated, to institute proceedings by a warrant of distress against the debtor? I think it is not. Let us try the question by reference to some analogous cases. I take it to be a sound principle, that when a special tribunal is created, with limited power, and a particular jurisdiction, that whenever the power given is once executed, the jurisdiction is exhausted and at an end — that the person thus invested with power is, in the language of the law, functus officio. This proposition is. 1 think, sustained by the ease in 0 Bing. S.">, where it is said by the court, that when a magistrate, who has power to convict, has once convicted, his jurisdiction is at an end— he is functus officio, ³ Could he, at any after time, upon some supposed error, quash, or in any way impair, the efficiency of his own •conviction? Suppose a controversy to have been submitted to arbitrators, and that they had made a final award, and delivered it, could they afterwards, on their own mere motion, change, or set aside their own award? Lest, however, it might be supposed that there might be any thing peculiar in this case, by reason of their being judges of the parties’ own choosing, let us suppose some cases of special jurisdiction, or powers given by law. Under the acts imposing direct taxes, assessors were appointed,to value the lands and slaves of the country, with a wiew to a just apportionment. After they had made and completed their assessment, so that it was once communicated, agreeably to the requirements of the law, could they afterwards, in any manner, have altered it, so as to change the valuation? Suppose that commissioners of bankruptcy had once ■decided in a given case — that the party was a trader, that he had committed an -act of bankruptcy — and had, in all respects, completely executed the power conferred upon them, could they afterwards, by their own authority, have vacated, or set aside their act? Finally, suppose that the commissioners appointed (under any one of the treaties, under which we procured an indemnity from Spain. France, or Naples,) to adjudge the claims of our citizens, had fully executed that trust — had made and announced an entire distribution of the fund; could they, at an after time, have varied their own adjudication? In all the cases which I have put, I inquire into the power of the special jurisdiction, of its own mere authority to alter or impair, what they had done. Examples might be indefinitely multiplied; these are sufficient to illustrate my idea, viz., that whenever a special jurisdiction has once executed the power with which it was invested, their power is at an end, as to the subject in relation to which it has been executed. Let us trace the injurious consequences of a contrary doctrine. Until the power of the auditor is once executed, the officer knows that it is his duty to account, and having accounted, to pay. But if, after the account had once been stated and closed, he could open it again, how often, and within what period of time, shall he do it? There is obviously no limitation, either as to length of time, or to frequency. Suppose, after once stating it. and then opening it, and re-stating it upon alleged error, he should think he had discovered error, he must open and re-state it again. It will be observed, too, that though the auditor in this case did give- the party notice, the law does not require it; unless, therefore, he shall be restrained to one settlement, it would be competent to him, years after the death of the original party, without notice, in the absence of his representatives, who might be dispersed through the United States, and in the absence of all proof on their part, to resettle the account in a manner which would produce great injustice. But, again: If it be competent to him to open the account in favour of the United States, the converse of the proposition must be equally true, upon the principles of justice; it must be competent to him also, after the lapse of years, to open it against the United States, and in favour of the party. Might not this course most injuriously affect the public interest? It seems to me, that a doctrine, which leads to such consequences, cannot be sound; and that the government is not without ample remedy, though this power shall be denied to the auditor. I suppose there can be no doubt, that a bill in equity would lie, to surcharge and falsify, as in case of a settled account between individuals; and moreover, according to the doctrine of the supreme court (Perkins v. Hart, 11 Wheat. [24 U. S.] 237), even at law, although a settled account would be prima facie evidence, yet it could recover, upon proving mistakes or omissions, any sum, of which it had been thus unjustly. deprived. Nobody doubts the power of the auditor to settle the accounts of the public officers from time to time, as they shall fail to account, or pay, any sums accruing after previous settlements; the objection is, to resettling an account once settled, and which must have imported to have been a full and final settlement, at the time when made; for the law requires that to be done.

I have felt some difficulty upon the question, whether a habeas corpus could be sustained in favour of a party imprisoned under civil process, as in this case. The difficulty arose from the doubt expressed by two high authorities, although decided by neither. In Ex parte Wilson, 6 Cranch [10 U. S.) 52. the party was arrested by a capias ad satisfaciendum, and was in prison bounds. An application was made for a habeas corpus. on the ground, that the creditor had rer fused to pay his daily allowance. The court said it was not satisfied that a habeas corpus was the proper remedy, in a case of arrest, under civil process. In Cable v. Cooper, 15 Johns. 152, the supreme court of- New York, except one of the judges, express the same doubt, and refer to the case in Cranch. The judge, in delivering the opinion of the court, says, if it were necessary to decide the point, he should say, it would not lie in such a case.

I suppose that, probably, the doubt originated from this fact. The celebrated habeas corpus act of 31 Charles II., which, as Judge Kent, in his Commentaries, says, is the basis of almost all the American statutes on the subject, and which, in practice, by reason of its valuable provisions for insuring speedy action, bas almost superseded the common law, has been held in England to be confined to criminal cases. All the judges of England in answer to a question propounded to them by the house of lords, answered: That it did not extend to any ease of imprisonment, detainer, or restraint whatsoever, except cases of commitment for criminal, or supposed criminal matters. 3 Bac. Abr. 43S, note. At the same time this question, in substance, was put to them: whether if a person imprisoned apply for a habeas corpus ad subjiciendum, at common law, and make affidavit that he does not believe that his imprisonment is by virtue of a commitment, for any criminal, or supposed criminal matter, would such affidavit, as the law then stood, be probable cause for awarding the writ? The question being objected to, was not put. This would seem to leave the point in an unsettled state. Yet there are two books of authority, which, I think, sustain the doctrine, that the writ is not confined to criminal eases. Blackstone, in volume 3, p. 132, says, that the great and efficacious writ in all manner of illegal confinement is the habeas corpus ad subjiciendum. Bacon (volume 3, p. 421) says: Whenever a person is restrained of his liberty,- by being confined in a common jail, or by a private person, whether it be for a criminal or civil cause, he may regular!y, by habeas corpus, have his body, and cause, removed to some superior jurisdiction, &c.

Now, the act of congress, authorizes us to issue the writ, “for the purpose of inquiring into the cause of commitment.” Upon this, the supreme court, in Ex parte Watkins, 3 Pet. [28 U. S.] 201, remarks, “that no law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the eonstitution, as one which is well understood. This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiry into its use, according to that law, which is, in a considerable degree, incorporated in our own.” If, in making this inquiry, we were to consult the British statute alone, we should find it, as already stated, confined, in its construction, to criminal eases. But, if we look to the common law authorities which I have mentioned, it seems to me, that we are justified in applying it to a case of civil process. Indeed; we know it to have been repeatedly applied in England to the domestic relations of life, such as the liberation of a wife from the unjust restraint of a husband, and a child from that of a parent. And certainly, we are well warranted in making this reference to the common law; because, although it is admitted by all, that it is not a source of jurisdiction, yet it is habitually, rightfully, nay, necessarily referred to for the definition and application of terms; indeed, there arc many terms in the constitution, which could not otherwise be understood. Nor do even the doubts expressed in the cases from Cranch and Johnson, apply to this; for both of those were on process of civil execution, issuing from a court of record and general jurisdiction; whereas, this is a case of process, issuing from a sj)ecial jurisdiction, which can neither be supervised by certiorari, nor re-examined by writ of error. In this case, then, if a habeas corpus would not lie, there would be-no relief from imprisonment without lawful authority. In cases of execution from courts of record, the courts themselves can quash it, if it do not conform to the judgment; if it do, and that judgment be erroneous, it can be corrected in a court of appellate jurisdiction. Upon the whole view of the subject, I am of opinion that the party should be discharged.

MARSHALL, Circuit Justice.

Robert B. Randofiili, late acting purser of the frigate Constitution, was brought into court, on a writ of habeas corpus, and a motion is now made for his discharge from imprisonment. The writ was directed to the marshal of this district, in whose custody he is. The return of the officer, shows the cause of caption and detention, to be a warrant issued by the accounting officers of the treasury., under authority of the act passed the 15th day of May, 1820; which, after reciting that Robert B. Randolph, late acting purser of the United States frigate Constitution, stands indebted to the United States in the sum of $25,097.83, agreeably to the settlement of his account, made by the proper accounting officers of the treasury, and has failed to pay it over according to the “act for the better organization of the treasury department,” commands the said marshal to make the said sum of $25,097.S3 out of the goods and chattels of the said Randolph: and in default thereof, to commit his body to prison, there to remain until discharged by due course of law. If these proceedings fail to produce the said sum of money, the warrant is to be satisfied out of his lands and tenements. The return shows that the body of the said Robert B. Randolph was committed to prison, and is detained by virtue of this process.

Several objections have'been taken to the legality of the warrant; the first and most important of which is, that the act of congress, under the authority of which it issued, is repugnant to the constitution of the-United States. If this objection be sustained, the warrant can certainly convey no authority to the officer who has executed it, and the imprisonment of Mr. Randolph is unlawful. The counsel of the prisoner rely on several parts of the constitution, which they suppose to have been violated by the act in question. The first section of the third ar- tiele, which establishes the judicial department, and the seventh amendment, which secures the trial by jury in suits at common law, are particularly selected as having been most obviously violated.

No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but If the ease may be determined on other points, a just, respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed. The act of congress, under the authority of which the process by which Mr. Randolph is imprisoned was issued, makes it the duty of certain officers of the treasury to settle,* and cause to be stilted, the account of any collector of the revenue, ■&c., who shall fail to render his account, or pay over the same in the manner, or in the time required by law, exhibiting truly the amount due to the United States, and certifying the same to the agent of the treasury. who is authorized, and required to issue a warrant of distress against such delinquent officer and his sureties, directed to the marshal of the district in which such delinquent officer and his surety, or sureties shall reside; which officer is commanded to make good the money appearing to be due to the United States, by seizing, and selling the goods and chattels of such delinquent officer and his sureties, and by committing the body of such - delinquent officer to prison, there to remain until discharged by due course of law.

If this ascertainment of the sum due to the government, and this issuing of process to levy the sum so ascertained to be due, be the exercise of any part of the judicial power of the United States, the law which directs it, is plainly a violation of the first section of the third article of the constitution, which declares, that “the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress shall from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” The judicial power extends to “controversies to which the United States shall be a party.” The persons who are directed by the act of congress to ascertain the debt due from a delinquent receiver of public money, and to issue process to compel the payment of that debt, do not compose a court ordained and established by congress, nor do they hold offices during good behaviour. Their offices are held at the pleasure of the president of the United States. They are, consequently, incapable of exercising any portion of the judicial power, and the act which attempts to confer it, is absolutely void. In considering the validity of this act, therefore, it is necessary to discard every idea of its conferring judicial power. We must not view the statement or certificate of the account as a judgment, or the warrant which coerces payment, as judicial process. They must' be viewed as mere ministerial acts performed by mere ministerial agents. They cannot be otherwise sustained.

I will, for the present assume, that the power of collecting taxes, and of disbursing the money, of the public, may authorize the legislature to enact laws by which the agents of the executive may be empowered to settle the accounts of all receiving and disbursing officers, and to issue process in the nature of an execution, to compel the payment of any sum alleged to be due. But these agents are purely ministerial, and their acts are, necessarily, to be treated only as ministerial acts. The inevitable consequence is, that their validity must be decided by those legal principles which govern all acts of this character. These require, that the authority, whether given by a legislative act, or otherwise, must be strictly pursued. Such agents cannot act on other persons, or on other subjects, than those marked out in the power, nor can they proceed in a manner different from that it prescribes. This is a general rule, applicable to such cases generally; it applies with peculiar force to that now before the court. I will not attempt to detail the severities and the oppression which may follow in the train of this law, if executed in contested eases. They have been brought into full view by counsel, in their arguments, and I will not again present them. It may be said with confidence, that the legislature has not passed any act which ought, in its construction, to be more strictly confined to its letter. By this rule its words will be ex--amined.

The first objection to this warrant is, that Mr. Randolph is not one of those persons on whom the law iras designed to operate. The act does not declare that. every debtor of the public shall be subject to this summary process. The particular persons against whom it may be used are enumerated. Those stated in the second section are. “any collector of the revenue, receiver of the public money, or any other officer who shall have received the public money, before it is paid into the treasury of the United States.” The obvious construction of these words is, I think, that they describe persons who hold offices under government, to whose hands the public money comes before it reaches the treasury. A collector of the revenue is an officer of this description; so is a receiver of the public money; and the following words, “or other officer who shall have received the public money before it is paid into the treasury of the United States,” demonstrated the kind of persons who were in the mind of the legislature. The subsequent words preserve the idea, that regularly appointed officers only were intended. The word officer, is retained, and is regu- laxly used throughout the section, showing plainly, that no other debtor than one who was properly designated by the term officer, was contemplated by the act. Throughout the section, too, the sureties of such officer are regularly connected with him, and subjected to the same process, so far as respects their property. I do not mean to say, that the liability of the officer is made to depend on his haying actually executed an official bond with sureties. I do not mean to say that an officer, regularly appointed, who should receive the money of the public before the execution of his bond, might not be liable to this treasury execution. But I mean to say, that this language proves incontestably that the legislature contemplated those officers only, who were required to give bond with surety, as the objects of the law. The sureties are spoken of throughout, as inseparable from the officer, as existing whenever the officer exists. This section does not comprehend the case of a'purser in the navy, but I have thought it necessary to enter into its exposition; because it has a material bearing on the third section, which does comprehend persons of that description.

The third section enacts, “that if any officer employed, or who has been heretofore employed in the civil, military, or naval departments of the government, to disburse the public money appropriated to the service of these departments, shall fail to render his accounts, or to pay over in the manner, and in the time required by law, or the regulations of the department to which he is accountable, any sum of money remaining in the hands of such officer, it shall be the duty,” &c. To what persons does the word officer, as used in this section, apply? Is it to every commissioned officer in the army or navy of the United States, to whose hands any public money may be intrusted, or is it to those officers only, whose regular duty it is to receive and disburse the public money, and who are appointed for that purpose? The language of the sentence, I think, answers these questions to a reasonable certainty. It is “any officer employed to disburse the public money appropriated to the service of these departments respectively.” A military or naval officer is employed for military or naval duties, not to disburse the public money appropriated to the sendee of his department. I cannot suppose, that a military or naval officer to whose hands, money belonging to the public may come, is, from the words of the act, more liable to this summary and severe proceeding, than any individual not bearing a commission, to whom the same money might be confided for similar purposes. The subsequent words of the sentence, “shall fail to render his accounts, or to pay over in the manner and in the time required by law, or the regulations of the department to which he is accountable,” &c., also convey the idea that a regular ■disbursing officer, whose duty was prescribed by law, or by the regulations of the department, was contemplated. This idea is still more strongly supported by that part of the section which adopts all the provisions of the second section, and applies them to the sureties of the officer who is designated by the act, as well as to the officer himself. I think, then, the fair construction of the law is, that regularly appointed officers who are required to give official bonds, were alone contemplated by the legislature. If we take into consideration the character and operation of the act, the extreme severity of its provisions, that it departs entirely from the ordinary course of judicial proceeding, and prescribes an extreme remedy, which is placed under the absolute control of a mere ministerial officer, that in such a case the ancient established rule is in favour of a strict construction; my own judgment is satisfied that this is the true construction.

Was Mr. Randolph an officer of this description? The process, by authority of which he is in prison, designates him as “Robert B. Randolph, late acting purser of the United States frigate Constitution.” The word acting, qualifies the word purser, and shows that he did not hold that office under a regular appointment, but for the time being, during the existing emergency. The omission to include his sureties in the warrant, as the law directs, shows that he had given no sureties; and this fact, unexplained, is evidence that no official bond, with sureties, was required. It might be added, that the explanatory accounts, to some of which reference is made in the warrant, prove with sufficient clearness that Mr. Timberlake was purser of the frigate Constitution, then cruising in the Mediterranean, and that on his death, Lieutenant Randolph was directed to perform the duties of purser during the cruise. It is then apparent, that he was a mere acting, and not a regular purser.

Mr. Nicholas has contended, with much plausibility, that having taken upon himself the office, he takes upon himself also all its responsibilities. This argument is true to a certain extent, and, as far as respects responsibility alone, is unanswerable. In a regular proceeding against Mr. Randolph, no person will be hardy enough to deny his responsibility to the same extent as if he had been a regular purser. It is not his responsibility to the United States, but his liability to this particular process, which is the subject of inquiry. Is a mere acting purser designated by this law as one of those officers against whom this summary process may be used? It is in vain to say that he comes within the same reason, and is within the mischief against which the statute intended to provide. The statute does not reach all public debtors, and has selected especially those for which it is intended. No others can be brought within its purview. Those principles of strict construction, which apply, I think, to all laws restrictive of common right, forbid it. These reasons satisfy my own judgment, that Mr. Randolph was not an officer to whom the law applies the process under which he is imprisoned. If it were necessary to assign any reasons for this distinction between temporary and permanent officers, it would not be difficult to find them. The permanent officer usually receives his money from the treasury, or by its order, so that the document which charges him, appears on the books of that department. The temporary officer will seldom be placed under the same circumstances. He may, and generally does, receive the money with which he is chargeable, in such a manner as to leave the amount a subject of controversy. In this particular case, Purser Timberlake must stand charged, I presume, with all the moneys advanced to the purser of the Constitution. The portion of this money which came to the hands of Mr. Randolph, would not appear on those books, and may be a matter of controversy between him and Timberlake’s representatives. Congress might very reasonably make a distinction, when giving this summary process, between an officer whose whole liability ought to appear on the books of the department, and an agent whose liability was most generally to be ascertained by extrinsic testimony. But it is enough for me, that the law, in my judgment, makes the distinction.

The accounts extracted from the books of the treasury, and laid before the court, furnish other matter for serious consideration. The second section of the act requires, that the account stated by order of the first comptroller of the treasury, “shall exhibit truly the amouut due to the United States.” Por what .purpose was the word “truly” introduced ? Surely not to prohibit the officers of the government from exhibiting an account known to be erroneous. Congress could not suspect such an atrocity. Its introduction, then, indicates the idea, that this summary process was to be used only when the true amount was certainly known to the department; when the sum of money debited to the officer appeared certain, and either no credits were claimed, or none about which a controversy existed. The amount due to the United States cannot be truly exhibited when the claim is shown by the account itself, to exceed what is really due. I do not mean to say, that the debtor is not bound to show with precision, the credits to which he is entitled. I do not mean to say how far his failure to separate payments made from his own funds, and from those of his predecessor, may deprive him in a suit at law, of the credits he claims. I mean to say, only, that the amount claimed, is not the sum truly due to the United States, if the account itself, shows that a smaller amount is due. The necessity of withholding the credit, may justify proceeding against the debtor in a court of justice, in which he must make good his credits; but will not, I think, justify issuing an execution, without any judicial inquiry, against the body and estate of the delinquent, for a sum confessedly more than is due. The third section omits the word “truly,” but requires that the account shall be-stated, and directs the agent of the treasury to proceed in the manner directed in the preceding section, all the provisions of which, are declared to be applicable to every officer of government, chargeable with the disbursement of public money.

It may be contended, that the provisions of the preceding section, thus adopted in the third, are those only, which relate to proceedings after the account is stated. But I do not think this the fair construction of the statute. I think the legislature can no more-have intended in the one case than in the other, that a treasury execution should issue for confessedly more than is due, by which the person of the debtor should be imprisoned, probably interminably, and his property sold. Congress must have designed to leave such cases to the regular course of law.

If these principles be correct, let them be applied to the case before the court. Mr. Randolph is charged in the account on which the warrant issued, with cash left by Purser Timberlake, on board the frigate Constitution, and, according- to his own confession, received by him, $11,483. That he must account for this sum is certain. I shall not inquire now whether the treasury might issue an execution for it, or ought to have applied to a court of justice. I will proceed to other items of the account. He is re-charged with slops issued by him, which belong to the estate of Mr. Timberlake, as appeared by his books. Is this to be settled at the treasury, under this act of congress, or does the inquiry properly belong to a court of justice? He is charged with German linen, belonging to his private stores, which he turned into the navy store at Charleston, as slops. This item had been allowed to him on a former settlement of his accounts. It is not alleged that this linen has been returned to him. The United States may, and probably have, used it. Whether he is entitled to any, and to what credit, for this item, is a proper inquiry for a court of justice. The treasury may refuse the credit, and refer the question to a court of justice, but cannot, I think, issue an execution for it, as the ease now stands. The material item allowed in a former settlement of accounts and now re-charged, is the amount of advances on his pay-roll to- officers and men, while he acted as purser of the Constitution, it now appearing by the memoranda of sales, by the evidence of Commodore Patterson, and others, and by the general state of the account, mat portions of these advances were made out of the money and stores of Purser Timberlake, and out of the ship’s stores. I will not make the obvious objection to this item, that if Mr. Ran dolph paid the money, or sold the stores of Mr. Timberlake on his own account, he is responsible to the estate of Mr. Timberlake, and that the treasury department of the United States does not represent him, nor that credits given for money paid by Mr. Randolph as his own, cannot be rescinded by alleging that the money really belonged to another person; nor will I inquire by what authority the treasury department settles the accounts between Timberlake’s representatives and Randolph. But I will say,' that this entry admits, that part of the money was paid by Randolph out of his own funds, and certainly diminished his debt to the United States to that amount. Consequently, the' whole amount for which execution issued was not due.

If I am correct in saying that this summary process can be used only to coerce the payment of the sum actually due, not to coerce the payment of more than is due, that such controverted question ought to be decided in a court of justice; then this warrant has been issued in a case which the law does not authorize; in a case which ought to have been submitted to a court of justice. On both these points I am of opinion, that the agent of the treasury has exceeded the authority given by law, and consequently that the imprisonment is illegal.

I have not had time to state my opinion on the remaining point on which my brother judge has given his opinion. It is of no importance, as I concur with him on it. Mr. Randolph is to be discharged from custody.

Footnotes

3

Crepps v. Durden, 2 Cowp. 640, cited and approved by the court in Mills v. Collett, 6 Bing. 85; 19 E. C. L. 11-14.