United States v. Fitzgerald

25 F. Cas. 1092, 4 D.C. 203, 4 Cranch 203

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1832
• Status: Published

Opinion

The CouRT

(Thruston, J., contra,)

refused Mr. Swann’s prayer, because it was not predicated upon any fact to be found by the jury; and because the Court could not, as a matter of law, say what the duties of a purser were, or whether this disbursement was part of the defendant’s duty as purser, independent of all facts to be found by a jury; as there is no statute defining the duties of a purser stationed at a navy yard.

The Court, (Thruston, J., contra,) gave the instruction prayed by Mr. Coxe.

Mr. Swann, having given in evidence the rules and regulations made by the Commissioners of the Navy, with the consent of the Secretary of the Navy, and approved by the President of the United States in 1817, prayed the Court to instruct the jury that they were binding upon the defendant as a purser, and that he was thereby bound to make the disbursement without any commission or other compensation than his regular pay as purser ; which the Court (Thurston, J., contra!,) refused; unless accompanied by the following qualification, namely, “unless the jury should be satisfied by the evidence, that when the disbursements were made, there was an agreement or understanding between the defendant and the Secretary of the Navy, or other officer competent to make such agreement, that he should receive a commission or other compensation for such disbursements beyond his fixed and regular pay as purser.”

With that qualification, the Court gave the last .instruction prayed by Mr. Swann.

Verdict for the defendant. Mr. Swann took a bill of exceptions, which is not now with the papers of the case.

No writ of error has been issued.