RANDALL, District Judge
(charging jury). Although, in form, this is an action brought by the United States to recover from . the defendant'an alleged balance, under his official bond as a purser in the navy, in reality, the only inquiry is the validity of a claim by the defendant against the government, consisting of three items, for which he claims credit, and which have been rejected by the proper accounting officers, as no action can be maintained by an individual against the United States, the only remedy for a claimant whose accounts have been rejected, is either to apply to congress, or, by retaining money of the government in his hands to compel the United States to commence a suit against him, and then his whole demand may be examined by way of a set-off, or equitable defence, provided it has been previously presented to the treasury department, and has there been disallowed. These preliminary proceedings having been had, let us examine the items of the claim, and the evidence adduced in their support.
The principal item is a claim for a loss of commission, or depreciation in the value of property purchased by the defendant as part of the stores for the U. S. ship “Constitution,” to which he was ordered as purser. In March, 1839, the defendant joined that vessel at Norfolk, she being then commanded by Captain Turner, and the flag ship of Commodore Claxton, the commander of the squadron intended for the Pacific. At Norfolk, and at New York, he purchased a supply of such stores, and other articles, as were usually purchased by pursers for the [1286]*1286officers and crew; the government furnishing such articles, as were of primary necessity, and the remainder being purchased by the defendant with moneys provided by the government, the articles remaining at his risk. There is no act of congress expressly defining the duties or emoluments of the purser, or the quantity or .kind of stores necessary to be provided by him; these are settled by the rules and regulations of the navy, by orders from the navy department, and by usage or custom.
It does not appear that any complaint was made, either by Captain Turner or Commodore Claxton, at the time of laying in the stores, of their quantity or price; and some of the officers prove that, considering the intended cruise, the supply was a reasonable one. A list of articles belonging to the purser, and their prices, was exhibited to the captain, approved by him, and placed in a public part of the ship soon after she proceeded to sea, by which it appeared that an advance of twenty-five per cent, was charged on articles termed of secondary necessity, and fifty per cent, on those termed luxuries. No complaint was made of these charges until the commencement of the year 1840, when, in consequence of information having been communicated to the commodore that a quantity of silk handkerchiefs had been sold by the steward of the purser (without the knowledge and in the absence of the latter) to the crew, and by them attempted to be smuggled on shore, he sent for a schedule of the ship’s stores, and issued an order, dated 23d of February, 1840, by which he directed that, “until the decision of the department in the premises be known, the issue of articles of private clothing is prohibited as far as it conflicts with that of the public slops in store, and when served out, must be charged at a profit of ten per cent.”
The defendant immediately remonstrated against the propriety of this order, as being contrary to usage, but, on the commodore insisting on its enforcement, he was obliged to submit. It is admitted that by “private clothing” the clothing purchased by the purser. and remaining at his risk, is intended; and that it has been customary and usual, and by some of the witnesses, considered the absolute duty of the purser, to provide such articles for the use of the men. That the commander of a vessel of war has a right to issue orders in relation to the discipline of his ship and the conduct of his officers on board, and to enforce those orders, there can be no doubt. It is a necessary part of discipline that such power should be vested in him, he being responsible for any abuse of it. It is also his right to control the issue of stores by the purser, and. if he thought the interests of the government or of the crew required it, to restrict the issue of such stores to a proper quantity; but he has no right to reduce or control the prices at which such stores are to be issued, that being fixed by the rules and regulations, and the usage and customs of the navy. Was there a fixed price or rate of advance which the purser had a right to charge on these articles? If so, what was it? And was it changed by the order of Commodore Claxton? On behalf of the United States it is contended that the rules and regulations prepared by the board of navy commissioners, and published in 1818, were in full force, and that by these “all articles of wearing apparel, and materials of which wearing apparel is made,”were “to be charged as slops,” and an advance of ten per cent, only allowed. It is admitted that so far as these rules and regulations are not opposed to the acts of congress, or to subsequent rules and regulations, they are in force; it is contended, however, that these do not extend to the private stores of the purser, but only to those purchased by government, or, if they do so extend, that the rule is superseded by the regulations issued in 1832, which were in full force in 1839-’40. ■
I deem it unnecessary to detain the jury by an examination of the first view, as I think the last is correct. Although the rule or section referred to in the red book, on the face of it, purports to bear date on the 27th July, 1809, and may have been suspended by the rules of ISIS (as to which, however, it is unnecessary to decide), I consider the incorporation of it in the rules of 1832 as a new issue of that date, and binding from the time of its promulgation, although it may conflict with the rules of 181S. Each successive secretary, or head of a department, has the same right as his predecessor to give a construction to the laws, regulations, or usages, of the business of his department, and the construction given to the last will be binding until changed or altered by a successor. U. S. v. McDaniel, 7 Pet. [32 U. S.] 14. This construction of the rules of 1832 has been adopted not only by the accounting officers of the government, but by congress. Act for the relief of E. B. Babbit, 2d March, 1S33 [G Stat. 548]. The rules of 1S32 provide (page 18) that twenty-five per cent, should be allowed on articles of secondary necessity; are these articles of private clothing, and materials of which such clothing is made, within that term ? This is a question for the jury. From the evidence it appears that the articles furnished by the purser are of a finer material than those provided by the government, and have generally been considered in the service as a holiday or shore dress for the seamen; they are not required to purchase these private stores, but do so at their own will or desire. A number of witnesses have been examined who prove it to have been the custom and usage to charge upon these articles an advance of twenty-five per cent., and that they were considered of a secondary necessity. It is true there can be no usage recognised by the court which is contrary to law; but it is [1287]*1287evidence of the construction given to the law, and when the usage is established it regulates the rights and duties of those who act within its limits. U. S. v. McDaniel, 7 Pet. [32 U. S.] 14, 15.
But it is said that a different construction was given to these regulations by Mr.
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RANDALL, District Judge
(charging jury). Although, in form, this is an action brought by the United States to recover from . the defendant'an alleged balance, under his official bond as a purser in the navy, in reality, the only inquiry is the validity of a claim by the defendant against the government, consisting of three items, for which he claims credit, and which have been rejected by the proper accounting officers, as no action can be maintained by an individual against the United States, the only remedy for a claimant whose accounts have been rejected, is either to apply to congress, or, by retaining money of the government in his hands to compel the United States to commence a suit against him, and then his whole demand may be examined by way of a set-off, or equitable defence, provided it has been previously presented to the treasury department, and has there been disallowed. These preliminary proceedings having been had, let us examine the items of the claim, and the evidence adduced in their support.
The principal item is a claim for a loss of commission, or depreciation in the value of property purchased by the defendant as part of the stores for the U. S. ship “Constitution,” to which he was ordered as purser. In March, 1839, the defendant joined that vessel at Norfolk, she being then commanded by Captain Turner, and the flag ship of Commodore Claxton, the commander of the squadron intended for the Pacific. At Norfolk, and at New York, he purchased a supply of such stores, and other articles, as were usually purchased by pursers for the [1286]*1286officers and crew; the government furnishing such articles, as were of primary necessity, and the remainder being purchased by the defendant with moneys provided by the government, the articles remaining at his risk. There is no act of congress expressly defining the duties or emoluments of the purser, or the quantity or .kind of stores necessary to be provided by him; these are settled by the rules and regulations of the navy, by orders from the navy department, and by usage or custom.
It does not appear that any complaint was made, either by Captain Turner or Commodore Claxton, at the time of laying in the stores, of their quantity or price; and some of the officers prove that, considering the intended cruise, the supply was a reasonable one. A list of articles belonging to the purser, and their prices, was exhibited to the captain, approved by him, and placed in a public part of the ship soon after she proceeded to sea, by which it appeared that an advance of twenty-five per cent, was charged on articles termed of secondary necessity, and fifty per cent, on those termed luxuries. No complaint was made of these charges until the commencement of the year 1840, when, in consequence of information having been communicated to the commodore that a quantity of silk handkerchiefs had been sold by the steward of the purser (without the knowledge and in the absence of the latter) to the crew, and by them attempted to be smuggled on shore, he sent for a schedule of the ship’s stores, and issued an order, dated 23d of February, 1840, by which he directed that, “until the decision of the department in the premises be known, the issue of articles of private clothing is prohibited as far as it conflicts with that of the public slops in store, and when served out, must be charged at a profit of ten per cent.”
The defendant immediately remonstrated against the propriety of this order, as being contrary to usage, but, on the commodore insisting on its enforcement, he was obliged to submit. It is admitted that by “private clothing” the clothing purchased by the purser. and remaining at his risk, is intended; and that it has been customary and usual, and by some of the witnesses, considered the absolute duty of the purser, to provide such articles for the use of the men. That the commander of a vessel of war has a right to issue orders in relation to the discipline of his ship and the conduct of his officers on board, and to enforce those orders, there can be no doubt. It is a necessary part of discipline that such power should be vested in him, he being responsible for any abuse of it. It is also his right to control the issue of stores by the purser, and. if he thought the interests of the government or of the crew required it, to restrict the issue of such stores to a proper quantity; but he has no right to reduce or control the prices at which such stores are to be issued, that being fixed by the rules and regulations, and the usage and customs of the navy. Was there a fixed price or rate of advance which the purser had a right to charge on these articles? If so, what was it? And was it changed by the order of Commodore Claxton? On behalf of the United States it is contended that the rules and regulations prepared by the board of navy commissioners, and published in 1818, were in full force, and that by these “all articles of wearing apparel, and materials of which wearing apparel is made,”were “to be charged as slops,” and an advance of ten per cent, only allowed. It is admitted that so far as these rules and regulations are not opposed to the acts of congress, or to subsequent rules and regulations, they are in force; it is contended, however, that these do not extend to the private stores of the purser, but only to those purchased by government, or, if they do so extend, that the rule is superseded by the regulations issued in 1832, which were in full force in 1839-’40. ■
I deem it unnecessary to detain the jury by an examination of the first view, as I think the last is correct. Although the rule or section referred to in the red book, on the face of it, purports to bear date on the 27th July, 1809, and may have been suspended by the rules of ISIS (as to which, however, it is unnecessary to decide), I consider the incorporation of it in the rules of 1832 as a new issue of that date, and binding from the time of its promulgation, although it may conflict with the rules of 181S. Each successive secretary, or head of a department, has the same right as his predecessor to give a construction to the laws, regulations, or usages, of the business of his department, and the construction given to the last will be binding until changed or altered by a successor. U. S. v. McDaniel, 7 Pet. [32 U. S.] 14. This construction of the rules of 1832 has been adopted not only by the accounting officers of the government, but by congress. Act for the relief of E. B. Babbit, 2d March, 1S33 [G Stat. 548]. The rules of 1S32 provide (page 18) that twenty-five per cent, should be allowed on articles of secondary necessity; are these articles of private clothing, and materials of which such clothing is made, within that term ? This is a question for the jury. From the evidence it appears that the articles furnished by the purser are of a finer material than those provided by the government, and have generally been considered in the service as a holiday or shore dress for the seamen; they are not required to purchase these private stores, but do so at their own will or desire. A number of witnesses have been examined who prove it to have been the custom and usage to charge upon these articles an advance of twenty-five per cent., and that they were considered of a secondary necessity. It is true there can be no usage recognised by the court which is contrary to law; but it is [1287]*1287evidence of the construction given to the law, and when the usage is established it regulates the rights and duties of those who act within its limits. U. S. v. McDaniel, 7 Pet. [32 U. S.] 14, 15.
But it is said that a different construction was given to these regulations by Mr. Secretary Paulding, and that he confirmed the views of Commodore Claxton. If the order of Commodore Claxton had been confined to supplies purchased subsequently to the receipt by him of this general- order, there might have been force in this argument; but no change of usage, even by authority, can ■have a retrospective effect, and must be limited to the future. This construction appears to have been given to the order in relation to all the other pursers on the station, who were allowed to dispose of their stores on hand at the former prices. It is said, howevér, that, supposing all these doings of Commodore Claxton to have been wrong, still the government is not liable for his acts, and therefore the defendant is not entitled to this set-off, although he has sustained damage thereby. For the purposes of this case, and with a view of obtaining a verdict on the merits of this claim, I state the law to be that Commodore Claxton was the agent of the government in all this transaction, and that, although his acts may not have been previously authorized by the government, as they were afterwards ratified by the secretary of the navy, with a full knowledge of the facts, the government is responsible for any loss occasioned by his orders so ratified and confirmed.
Again, it is contended that, supposing all the allegations of the defendant to have been fully made out by the evidence, yet this is not such a claim as can be set off against the demand of the government in this action. However this might be in suits between individuals. the government of the United States does not resort to technicalities to screen it from a just claim by any of its citizens. The act of 3d of March, 1797, directs not only that legal but that equitable credits should be allowed to the debtors of the United States by the proper officers of the treasury department, and, if there disallowed, they may be given in evidence at the trial; and this whether the credits arise out of the particular transaction for which suit was brought, or any distinct or independent transaction which would constitute a legal or equitable set-off or defence, in whole or in part, to the debt sued for by the United States. U. S. v. Wilkins, C Wheat. [19 U. S.] 135. It is incumbent on the. defendant to satisfy you what is the amount of credit to which he is entitled under this head. In estimating it you are to allow only the actual loss sustained by him, and not any prospective or anticipated profits which might have been made by the defendant, supposing his whole stock to have been sold at the prices claimed by him. If, in consequence of Commodore Claxton’s-order, the goods remaining on hand were injured or damaged, he is entitled to recover the amount of such damage; but the jury will determine whether such damage was caused by the order, and whether the sales were lessened in quantity in consequence of the reduction in price. The sales made on shore, and those to other pursers, are not such as would entitle him to charge the government with the advance of twenty-five per cent, on cost, but if made bona fide, with a view to reduce an anticipated loss, he will be entitled to be made good his actual loss on such sales.
The second and third items of claim are for commissions on moneys paid by the defendant to mechanics and laborers, when stationed at the Navy Yard in Pensacola, from October, 1835. to December, 1837; and for commissions on the amount of bills of exchange drawn by him on the government from May, 1827, to February, 1830. These are alleged to be extra services for which, by the custom of the department, the defendant is entitled to extra compensation. From the rules and regulations of 1818 and 1832, as given in evidence, it appears that both the drawing of the bills of exchange by pursers, when abroad, and the payment of mechanics and laborers by them when stationed at the navy yards, were duties devolved on, and usually performed by, pursers. But if, from the evidence, the jury believe that these duties were required of, and were performed by the defendant, over and above the regular duties of his appointment, and that it has been the practice of the government, or of the navy department, to allow to pursers compensation or commission over and above their regular pay, and that the defendant took upon himself the labor and responsibility of such payments, and drawing of bills, with an understanding on both sides that he should be compensated for the same as extra services, then, it is competent for the jury to allow such sum as they may find to be reasonable, and conformable to the general usage of the government in like cases.
But custom and usage, which have been invoked by the defendant in his favor, must also operate when established against him. The usage, to be binding, must be uniform, and applicable to all officers of the same grade, under similar circumstances. It is not sufficient that one. or two, or half a dozen officers have been allowed an extra compensation for such services, unless the rule was a .general one, so that each officer performing the service might be supposed to rely on the known practice of the government to allow extra compensation when the service is performed. The jury will say whether the few cases in which extra compensation is proved to have been allowed are not rather exceptions to the general rule of refusing such compensation, than proof [1288]*1288of the rule itself. My opinion is that the weight of the evidence is against the claim of the defendant for either of these items. I have deemed it unnecessary to enter into any examination of the amount of these claims. There is no dispute about the amount of bills drawn, or the sums paid to mechanics and laborers; the only question is as to the right to any payment or compensation for either.
NOTE. On the 25tb June, 1845, the jury rendered a verdict for defendant, and granted him a certificate for $508.72; the defendant being thereby allowed the following credits:
Commissions on payments at Pensacola . $ 2,275 38
Interest thereon . 1.024 00
Commissions on bills of exchange .. l,62fi 80
Interest thereon.. 1,455 00
Loss on sales. 385 52
Loss of commissions ..... 5.277 46
$12,044 22
Deduct government claim.... 11,535 50
Due defendant ..$ 508 72
On the 5th September, 1845, the defendant released the two items of interest allowed by the jury, and agreed that judgment should be entered for the plaintiffs for $1,970.28, with interest from 1st March, 1844, in all $2,479, and costs; and thereupon the court overruled a motion for a new trial, which had been made by the plaintiffs. On the 15th September, 1845, the plaintiffs took a writ of error to the circuit court of the United States for the Eastern district of Pennsylvania, wherein, on the 9th November. 1846, the judgment of the district court was affirmed; and thereupon the plaintiffs, on the 14th November. 1846, took a writ of error to the supreme court of the United States, wherein, at January term, 1850. the judgments below were reversed, and a venire de novo ordered. See 8 How. [49 U. S.] 83. The case was subsequently discontinued.