HOPKINSON, District Judge
(charging jury;. The claims of the plaintiffs were arranged or classed under four heads:—
1. Custom-house bonds put in suit during the collectorship of Delany and Latimer, and remaining unpaid and unaccounted for to the treasury of the United States.'. $ 37.992 22 ‘
2. Bonds put in suit during the period in which Mr. Dallas was district attorney, and remaining unpaid and unaccounted for. 128.319 63
3. Bonds put in suit while the defendant. Mr. Ingersoll. was district attorney. 2.610,468 37
4. A debt recovered from Toler v. Armstrong, and received by the defendant. 3.158 82
The total amount of these charges is . $2,785,939 04
[475]*475The credits or deductions that have been allowed to the defendant at the treasury are as follows:
1. The whole at the first of tbe nbove it«insoi claim, which may, therefore, b» expunged from the account.„. $37,992 22
2. On the sec md of theaboveitems of e.aim. he is allowed,for bonds nor. received by him. $ 82,336 15
On this item he is also credited with the amount of bonds collected by him and paid into the treasury, being. 43.481 93
$126,018 OS
Leaving a balance against him on this item of. $ 2,301 35
3.On the third of ihe above irems of claim, that is, bonds received by him from the custom-bonse for collection while he was district attorney, he is credited as follows:
I. Bonds on which he received no money.$1,668,077 88
II.Payments which weremade by him. 822,556 89
III.Paymentsmadebyhissuc-cessors . 93,402 7C
Making hiswhole credit on this item.$2,584,037 03
Leaving a oalance against him on this item of. 82,431 84
4.To these is to be added tbe amount received by him from Toler v. Armstrong. 8,158 82
$37,891 71
The balance, or principal sum. tben, which is now claimed from the defendant, is thus made up:
Balance due on Mr. Dallas’ bonds $ 2,SOI 55
Balance due on defendant’s own bonds ... 32,431 34
Amount received in Toler v. Armstrong . 3.158 82
57,891 71
Tbe residue of the claim of the United States is made up of interest, calculated on each bond from the time it was put in suit to the 15th December, 1830, making the total amount claimed 870,491.00, with interest from the 15th December last.
You will understand that the ground of prima facie charge, or charge in the first instance, against the defendant is not that he has actually received the money or the bonds claimed from him, or that they have been lost by any misconduct or neglect on his part, but simply that if it appears, by the ■records of the suits, that the party against whom they were brought has in any manner been discharged of the debt, either before or after judgment, by a discontinuance of the suit, or by an entry that the demand has been “settled," it is then thrown upon the defendant, under whose direction the suits were placed, to show how they were settled, to show why the defendants were discharged from the claim, or to show that it was not by the payment of the debt to bim, or in any other manner, to make him legally or equitably liable to tbe United States for it.
As a principle running through the whole case, I will here say to you that the discharge of a debtor, before or after judgment, is not of itself a ground of charge upon the defendant. He is liable for the money actually received by him, or which has been lost through his unwarrantable neglect; but he is not answerable for the defaults, inattention, or frauds of the marshal. He also is an officer of the United States; they take from him surety at their pleasure for the faithful performance of his duties; and the district attorney is not officially the surety of the marshal. The principle, however, is to be taken with the qualification that the loss arising from the marshal may not be traced to the official negligence of the district attorney.
(The judge then recapitulated the facts appertaining to each of the items pf the plaintiffs’ account, as they appeared from the evidence; and continued,. as follows:)
We now come to the consideration of the most important and interesting part of the case; that is, the claim made by the defendant upon the United States by way of set-off. So far as they depend upon questions of law, they involve principles of vital importance; and I shall feel it to be my duty to speak of them in the most explicit manner, not only to prevent any misunderstanding on your part, but to give the party affected by my opinions an opportunity to have them reversed and corrected if I am mistaken.
The first is a claim or charge of seventeen hundred and forty dollars for fees taxed, allowed, and credited, but unpaid. No reason has been shown to me, either by any of the treasury documents, or by any evidence or argument offered at this trial, why this money should not be all paid to the defendant. They are legal fees to which he is entitled by act of congress. It is objected, and I remember no other objection, that they require the allowance of the judge. That is nothing but tbe evidence of the claim or right to be given to the treasury. But we are not confined to this evidence: at any rate, that allowance may now be given, either in the form it is now given by me, or by a certificate on the account.
Second, a claim of five thousand and eighty-three dollars and twenty cents, for fees taxed and allowed, but applied by the treasury to the payment of a debt due to the government by Marshal Conard. I can see no difficulty in this item of charge. The marshal was the officer who received from the treasury, not only his own fees but those of the district attorney and clerk. In the account he presented to be settled with the treasury, he charged these fees, which he was to pay over to them when received from the government, and was not bound to make advances to them. Conard goes to the treasury to settle his account; in it there was a charge against the government, of a certain sum which included the fees due to the clerk and district attorney. Two objections were made to the allowance of this credit claimed [476]*476by the marshal: 1st, that the fees of the clerk of the district and district attorney were not receipted; 2d, that it was undecided whether they should be paid by the treasury or the collector of the customs. In other words, the treasury required vouchers to support these claims made by the marshal. These vouchers were some account or receipt from those officers. In answer to this, all the officers put in Mr. Conard’s hands the receipts in question, known to be for the mere purpose of enabling Mr. Conard to receive from the treasury the money due to them; and if, on these receipts, the treasury had paid the money to Conard, it is certain these officers would have been obliged to look to him for it. But the account with Conard was settled, and he would have beeu largely a debtor to the United States had they not allowed him a credit for these fees due to the clerk and district attorney; that is, had they not applied their money to pay his debt. If they supposed, which is hardly credible, that Conard had actually paid them this money, it was a mistake; but, at any rate, there was a misapplication of this money to Conard's account which ought to be corrected.- Conard had authority to receive their money, but not to pass it in a credit to himself in his account. As the clerk had no other means of obtaining a return of this money, he applied to congress, who have honestly corrected the error.
We now come to a class of charges to which I request your serious attention; as, in my opinion, they depend upon principles of the highest importance. I shall not hesitate to give you my opinion upon them in clear and decided language, that you may understand my views of them, and the parties have the benefit of an exception to them if they shall think them erroneous. They shall be submitted to you under such instructions as I shall deem it my duty to give. They consist of charges or claims upon the United States for: (1) Counsel fees in the militia cases; (2) counsel fees in the Amelia Island cases; (3) attorney’s fees for extra official services; consisting of advice, and, perhaps, other services rendered through the course of fourteen years, to various officers of the government, such as those of the custom-house, of the direct taxes, and of the naval and military establishments. These last claims amount to $11.67.5.
The first feature is, that these services form no part of the official duty of the district attorney. They are. indeed, claimed because they did not; and that they were performed by him simply as a professional man; and that the persons employing him had it at their option to go to any other lawyer in the same manner, for the same purposes. and in the same rights. The contract of Mr. Ingersoll. whatever it was, express or implied, for more or less, was a personal individual contract between him and the officers who employed him. and he was bound to take care that they had authority to contract with him. This question then is presented for decision in this case: Whether the subordinate officers or agents of the government employed in the custom-houses, or the collectors of taxes, or in the army and navy, amounting to hundreds and thousands, all and every one of them, have in themselves and by virtue of their offices, without any act of congress, any authority from any department of the government, to make contracts with whom they jilease, binding on the United States? This is a most startling question, and if the law of the United States sustains this right, I will venture to say that no other law of any other government ever has done so, and that no government can live under it.
The ground of these charges is, that a custom-house officer, from time to time during the period' mentioned; that the collector of taxes; that the marshal of the district; that certain naval and military officers—marines or recruiting sergeants—came to the defendant, not as the attorney of' the government, not as the officer of the government, but as their attorney, selected by them; and engaged him in service on such terms as they chose, expressly or by implication, to make with him; and this contract is a contract made for the United States, which they are bound to perform and fulfil. Under such contracts, made by such officers, some $14,000 or $15,000, are charged upon the United States.
But let us turn from the circumstances of this case; from the services which I doubt not were meritorious; from the charges which may be just and reasonable; for these are utterly insignificant—a mere bauble, compared with the inúnciple by which they are sustained. If these officers may make contracts with a lawyer binding on the United States, why not'with anybody else, and for any other purpose they may imagine to be connected with the public service? We do not know that many of these cases of service and advice may not have been strictly personal, for which the officer was himself only liable. But I put this out of the question. No law of the land, no usage, no precedent. no authority of any sort or kind, has been shown to support such an authority to such officers. Are we now to make the law for the first time in nearly fifty years? What should be the regular course in such cases? The collector of the customs wants advice in a certain difficulty; let him, if there is time, consult the department; if there is not time, let him go to any counsel he pleases; let it be an affair between him and his counsel; let him make the contract for the service and pay it; and then, in his account with the government, he may charge it to contingent expenses. The officers of the treasury will examine it, and allow it, if it be such a service as they ought to pay for. He is a debtor of his lawyer, and the government is his debtor. But can lie raise up a [477]*477creditor of the government without their knowledge or consent, unless' he is authorized to do so by some act of congress, or by some official usage authorizing him to do so? In the cases where counsel fees are charged, as the militia cases, or a contract made by Marshal Smith (a defaulter and insolvent), there was no hurry, no emergency, requiring immediate action, so that the department could not be consulted. On the contrary, in all these cases the government had their counsel and paid their counsel, and the defendant was not the counsel they employed, but the counsel of the marshal, who had a large personal interest in the suits, and could afford to have his counsel; but in neither case was there any authority from the government to employ him.
As to the charge of $1,000, for services performed in the Amelia Island cases, in the district of Delaware, it stands upon a different footing from the militia cases. The services rendered by Mr. Ingersoll in Delaware, appear to have been performed by the direction, or at least with the approbation of the secretary of the treasury. In relation to these services the comptroller writes that he has had conversations with the secretary, and they had determined to allow eight hundred dollars for the several cases in the district of Delaware; but it appears that antecedent to this Mr. Ingersoll had settled with the collector of Delaware and paid him the moiety of the forfeiture belonging to the United States in the case of the Good Friends, and the collector had allowed Mr. Ingersoll one thousand dollars as his professional compensation from the United States. This the collector had no right to do. It was a transaction between him and Mr. Ingersoll, and was probably not known to the treasury when the comptroller wrote his letters, as no remark is made about it. The treasury, however, acquiesced in this addition of. two hundred dollars to the sum they thougm sufficient for the services rendered them, and supposed, it is presumed, the whole affair was settled. Mr. Ingersoll now alleges that' the one thousand dollars received from the collector, was only for his services in the case of the Good Friends, and asks a further sum of one thousand dollars for Thompson’s cases. He relies upon the receipt given by the collector to him to prove this. The receipt is not explicit. The one thousand dollars are said to be a compensation “for his professional services from the United States.” It may refer to all his professional services, or it may be confined to the case then settled. But this receipt was a separate paper between Mr. Ingersoll and the collector. It has no binding power on the United States. It is to be recollected that in the comptroller’s letter to Mr. Ingersoll, he is informed that the treasury had determined to allow him eight hundred dollars for all these cases. We have, as far as I recollect, no reply from Mr. Ingersoll to these letters, from which we may infer that he acquiesced in this determination, with the addition of the two hundred dollars he had received; if there was this acquiescence, there is no foundation for the claim. He should have said at once, that so far from receiving eight hundred dollars as a full compensation for all the cases, he had already charged one thousand dollars for one of them, and expected another thousand for the rest. If you should not think that there was this silence and acquiescence, still if you think the one thousand dollars paid was adequate under all the circumstances (in which you may ■fairly take into your consideration his receipt in the same cases from the' collector), you will not allow this item of $1,000.
In support of these claims, the letters of President Monroe, and Mr. Dallas, the secretary of the treasury, have been referred to. It is said the former has sanctioned the charge of counsel fees in the cases mentioned. Let us see if he has. I would premise that although the president has a right to employ any particular person on any particular service for the government, and to direct him to be paid for it; yet giving his opinion on a past case for past services, not performed under his direction and authority, but being in the nature of an opinion on a question of law, that opinion is of no authority here. I speak of authority. It will be respected, but it makes no law, nor does that of the secretary of the treasury. But what has the president said on this occasion? Mr. Ingersoll. for whom the president had a strong personal attachment, wrote to the president, stated his case, and urged his claim. What was the answer of the president? A most safe and prudent one. He sent Mr. Ingersoll’s communication to the comptroller, who is the law officer of the treasury, and writes to know “if the district attorney of Pennsylvania has been called to render professional services to the United States, out of the state, and out of the line of the practice in that state?” I pay no regard to the verbal criticism of whether “and” means “or”—that is not the important part' of this letter. But what follows? “And that if the call was made upon him by either of the executive departments, it forms a just claim to a reasonable compensation.” This is exactly in conformity with the opinion of the supreme court, delivered several years after. But does it say, if the call was made upon him by a collector of customs in a different or the same state, or by a marshal, or a collector of taxes, at whose instance the service in question was rendered, that the counsel fees are allowable? No such thing, and the law officer, on this letter (if it were an authority) could not allow them.
In relation to these counsel fees, a usage has been attempted to be made out. That is Mr. Wirt’s case. It is enough to say his services were performed by direction of the [478]*478president, at an arranged amount of compensation. As regards these fees, there is no act of congress; there is no order or authority from any of the executive departments; there is no usage; nay, there is no like instance from the beginning of the government to this day, nearly fifty years.
As to the item of advice, &c., to collectors, and naval and military officers, an attempt has been made to give it support by the sanction of Mr. Dallas, then secretary of the treasury, and, before that time, district attorney. The account was presented by defendant to the comptroller, and by him referred to Mr. Dallas, because of his knowledge and experience on the subject. What is Mr. Dallas’s reply? “There are many services performed by the district attorney for which compensation is not provided by the acts of congress, nor by the state fee bill. The inequality and injustice of his compensation, compared with the compensation of attorneys of other districts, are correctly stated in Mr. Ingersoll’s letter.” This applies to the fee bill at Yew York, not to such charges as these. “If any law or precedent will authorize the settlement of Mr. In-gersoll’s account, I think it ought to be allowed and- paid.” But as there was no law or precedent found for it, it was not allowed by the comptroller. As the letter from the comptroller to the defendant has also been relied upon to support these charges, it Is proper to advert to it. It is dated on the 18th July, 1815, and in reply to one received by him from the defendant. After saying that he will refer the question of the fees to Mr. Dallas, he adds: “The manner in which you propose to keep and settle your accounts, and to receive the moneys which may be due to you for your official services, will be perfectly agreeable, to me.” In Mr. Inger-soll’s letter, he had proposed to keep and render his account for these services, anu says, “Instead of presenting separate accounts to each department, it would he more agreeable to me to state one entire account of the whole, and to present it to the comptroller for examination and settlement.” To this manner of keeping and settling thé account the comptroller has no objection. Mr. Ingersoll proceeds: “Should this mode of stating the account be approved, the mode of payment might in like manner be arranged so as to admit of the deduction of the whole sum due out of any fund paid into my hands.” To this mode of paying what shall be due the comptroller also agrees; but as to the charges in question, he refers them to Mr. Dallas, and we have seen what he has said about them.
As to precedent or usage on this item: 1st. Mr. Dallas, the secretary of the treasury, who had been for many years district attorney, and in the stirring times of the embargo. &c.. knew of none, or he would not have referred the question to the comptroller. Yet, doubtless, he rendered the same services, and probably in at least an equal number of cases. 2d. Mr. Dallas, ■ the younger, says he rendered similar services, and never made any charge for them. 3d. Of all the district attorneys of the United States (probably not less than forty), no account or precedent has been produced of such claims allowed or made. Their accounts are placed in the treasury; some are, indeed, dead, but their accounts are there; and many are still living. The comptroller w.ho settled the accounts of all the district attorneys knew of no claim like this. I do not inquire into the equity of these charges, nor how much of this service was performed by the defendant; we must have a lawful authority for them. The principle is this:, if he had an application a day. and another district attorney but one a week, the right is the same.
I leave this part of the case, however, upon the argument on both sides; we must look to higher grounds to stand on. The question with us is not what were those services, or how reasonable are the charges, but, is the government answerable for them? Had the persons who made the contract for the services a right to bind the United States to pay for them? Are we now to make a new rule for this district, which is found in no other, and never has been in this or any other? Will the other districts follow us in the innovation? or are there to be as many rules for settling district attorneys’ accounts as there are districts? Will the treasury officers of the United States settle such accounts in such various ways? It has been well put by the district attorney, whether two subordinate officers of the government can sit down together and make contracts with each other binding on the United States. Enormous would be the extent of the power; there are thousands of such officers all over the United States. The more or less of the service done is nothing; it is the principle, the power, which is the thing to be looked at. It has been argued by the defendant that, if there was no law for these charges at the time Mr. Dallas wrote his instructions to the comptroller, it has since been found by the supreme court, and cases have been referred to. These I shall briefly notice. The first is U. S. v. Macdaniel, 7 Pet. [32 U. S.] 14. Macdaniel was a salaried officer. a clerk in the navy department. The services for which he claimed compensation beyond his salary were no part of his duty for- which the salary was paid; but they were required of him by the head of the department in which he was subordinate as a clerk, and he had no discretion to decline the labor imposed upon him. This is dearly within the principle of Mr. Monroe’s letter. The service was required by the head of the department; it was no part of his duty under his salary, and formed a clear claim to compensation. The next is U. S. v. Ripley. Id. 18. Without recapitulating the details of the case, the extra claims were for planning [479]*479fortifications and disbursing moneys; but the principle laid down by the court was that equitable allowances should be made for extra services performed by an officer, which did not come within his official duty, and which he performed under the sanction of the government, or under circumstances of peculiar emergency; and this must be shown on his part. Now, we can understand how a military commander at a distance from the seat of government, or an Indian agent, as in Duval’s case, may be called upon to disburse moneys or perform services indispensable to the public service, on the moment, and without the possibility of obtaining the sanction of the government; but whenever that sanction can be had, it must be obtained, else the officer acts at his peril. Now, whatever emergency there may have been in the case of any particular application to Mr. Ingersoll by a custom-house collector, or by a military or naval commander, yet at any time he might know, in a few days, whether the government would sanction such charges or no. Indeed, he made the application, and received no sanction. If the government was silent, Mr. Ingersoll should have suspended these services until he had their sanction. The next ease is U. S. v. Fillebrown, Id. 28. There the defendant, Fillebrowu, was secretary to the commissioners of the hospital fund, at a fixed salary. He claimed compensation for extra services in bringing up the records of the ■ board, antecedent to his appointment, and also for disbursing moneys under the order of the board. It was, in the- first place, held by the court that his having a salary did not exclude him from charging for these disbursements; that it was not necessary the board of commissioners should have passed a resolution for the payment of the commissions claimed by the defendant for making the disbursements, nor that the board should have sanctioned his claim for them. But it further appeared to the court that the secretary of the navy considered the agency of the defendant, in relation to this fund, as entirely distinct from his duty as secretary of the board, and that he was to have extra compensation for it,—that is, for that agency: and it also appeared that all this received the direct sanction of the commissioners. The secretary of the navy was the acting commissioner, and had authority for doing what he did. It was, therefore, says the court, "an express contract entered into between the board, or its agent, and the defendant, and that the board could not, after the service had been performed, rescind the contract, and withhold from the defendant the stipulated compensation.” This was simply the case of the same individual holding two distinct appointments, with a stipulated compensation for each, and, of course, he was entitled to both. U. S. v. Duval [supra], decided in this court, was simply a recognition of the principles established in the foregoing decisions of the supreme court.
The charges, then, which are made by the defendant, as a set-off against the United States on account of extra official services rendered to them or their officers, cannot be admitted, unless they are good and valid debts owing by the United States to the defendant; and they are not such debts,—unless the various persons by whom they were contracted might, at their discretion, and by their own authority, make contracts binding on the United States. This cannot be. It is my clear opinion that all the charges made in this cáse, by way of set-off against the United States, for what are called extra official services, rendered by the defendant to certain subordinate officers of the government, and on their application and request-such as collectors and other officers of the customs, in this or any other district, collectors of taxes, the marshal of the district, and military or naval officers,—which are not provided for by any act of congress, and were not performed on the call or requisition of either of the executive departments, and have not been sanctioned by them, or either of them, and which have not been sanctioned by a usage so certain, uniform, and notorious, as to be understood and known to both parties, so as, in effect, to be taken as part of their contract, should not be allowed to the defendant as a credit or charge against the United States. I think that they should not have been allowed (as they were not) by the president, or the head of any department; and they are submitted to you, with these instructions as to the law. The seventh and eighth items of the defendant’s set-off, as stated in the treasury transcript, are for “counsel fees in the suits of Nicholl v. Conard, and of Atlantic Ins. Co. v. Conard [Case No. 627].” The services were rendered; and our first inquiry is, whether he was employed in them by a competent authority. 1 think this is sufficiently shown. On the 27th November, 1828, Mr. Ingersoll wrote to the secretary of the treasury, giving him an account of the trial and termination of the suit of Nicholl v. Conard, and of the part he had taken in it. At the same time, he presented his charge of seven hundred and fifty dollars for his fees in that case, and a further charge of two hundred and fifty dollars for retaining fees in the insurance companies’ suit, to which suits he says be appeared, according to the instructions of the secretary. On the 1st January following, the secretary writes to Mr. Ingersoll. He makes no objection to the charge in NicholTs suit, on the ground that Mr. Ingersoll was not employed by the United States, nor on any other ground; nor does he deny that he had instructed Mr. In-gersoll to appear in the other suits. On the contrary, he says: “By direction of the president. I have to request you will take part, on behalf of the United States, in the argu[480]*480ment of Atlantic Ins. Co. v. Conard [supra].’’ It appears to me that he acquiesces both in the authority for the services, and the amount of the charges for them.
There remain for my observation only the jelaims made by the defendant for his services in the suit of Toler v. Armstrong (vide 11 Wheat. [24 U. S.] 258), and for one-half of the moiety of certain forfeitures, of -which he alleges he was deprived by the wrongful interference and acts of the treasury officers of the United States. As to Toler v. Armstrong [supra], I understand it to be, that a suit was brought in the circuit court of this district by Toler against Armstrong; Mr. Chauneey being the attorney and counsel of the plaintiff. Before it was terminated, the United States became entitled to the sum claimed by the plaintiff, by virtue of an assignment made to them. The original plaintiff, the client of Mr. Chauneey, having no longer any interest in the suit, turned it over to Mr. Ingersoll, as the attorney of the United States. Mr. Ingersoll took charge of it, conducted and argued it as the sole counsel of the United States, both here and in the supreme court at Washington, and finally succeeded in recovering and receiving the sum of $3,158.-82. From this amount he deducts one thousand dollars as his professional fee, and is ready to pay over the balance to the United States. I confess that there is no item in any of the accounts of the parties to this suit which has embarrassed me so much as this. I have turned it again, and again in my mind, to reconcile what appeared to me to be the equity of the claim with the higher obligations of the declared law of the land.
It has been made a question in the argument of the defendant, whether, in performing this sendee, he should be considered as acting for the United States, or for Toler, the party and plaintiff on record to the suit. I cannot consider him as acting as the attorney of Toler; he had no authority from, or intercourse with him, nor did Mr. Chauneey surrender the action to him in that character. but clearly as the attorney of the United States. Toler had no longer any interest or lot iu the suit or claim, and it was because he had not that his counsel abandoned it, and it was put into the hands of the attorney of the party who had succeeded to Toler’s rights, and for whose benefit the suit was therefore prosecuted. I must consider Mr. Ingersoll as acting as the attorney of the United States in the prosecution of that action. How does his claim for compensation stand in this view of the service? The act of congress of the 24th September, 1789 (1 Story’s Laws, p. 67, § 35 [1 Stat. 93]), enacts that “there shall be appointed in each district, a meet person, learned in the law, to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district, all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court (which then was held in this city), in the district in which that court shall be liolden,” and “he shall receive, as a compensation for his services, such fees as shall be taxed therefor, in the respective courts before which the suits or prosecution shall be.” Now, it is very clear, and has always been so understood, that for all the duties and services imposed upon and performed by a district attorney under the directions of this act, his fees, taxed as aforesaid, are the only compensation he can claim from the United States. Our question, then, is reduced to the inquiry whether the services performed by the defendant in the case of Toler -v. Armstrong are such as are described and intended by the act of congress? The words are: “All civil actions in which the United States shall be concerned.” They are sufficiently comprehensive in their literal sense to include this case; but yet I have very serious doubts if they were ever intended to be so applied. They, indeed, had an interes.- in the money to be recovered in this action, and they were so far concerned in it; but they were not concerned as a party to the subject of controversy, directly or indirectly. If the money should be recovered, it would be theirs; if the plaintiff should fail, the judgment for the defendant would have no operation upon the United States in any way, or for any purpose. Their interest—their concern in this action—was accidental, collateral, contingent. The court in which the suit was prosecuted knew nothing of the United States as a party concerned in it. These considerations, and others of a similar character, have raised an unquieted doubt in my mind whether the defendant should be excluded from a reasonable compensation for this service; but I think his claim may be put upon a more certain ground. I would not say that this was an extra official service, but rather an official service, or service performed for the United States directly (not by implication, in the person of a subordinate officer), for which no compensation is provided by law, and for which the executive or a head of department might and should allow compensation. It will be remembered that the act I have referred to expressly excepts from the duties of the district attorney (for which the compensation is provided by that act), civil actions before the supreme court; and this was the case when the supreme court sat in this city, at the door of the district attorney. It was no part of his duty, even then, to argue the cause of the United States in that court. If we then should lay out of this case all that was done by the defendant in the circuit court of this district, we find him following the case to Washington, and there arguing it alone (as appears by the report), against Mr. Webster and Mr. Wheat-on; he succeeded, and the treasury of the United States is so much enriched by his la[481]*481bors. But was this a mere volunteer service, for which he can raise no claim for compensation? By no means. The United States accepted the service; they relied upon it alone, they had no other counsel, and this is enough to raise a contract for compensation for the service. It is entirely different from the cases in which the defendant entered into the service on the application, and as the counsel of other persons, although they were officers of the government. In these cases the United States neither originally required, nor ever accepted the service, as rendered for them, or by the requisition or sanction of any of the heads of department. •
The last item of set-off, or charge against the United States which it is necessary to call your attention to. is that stated as the tenth item in the treasury transcript. It is a claim for twelve thousand five hundred dollars for a moiety of the fines and forfeitures received from E. Thompson and others, for which a bond had been given to the collector of Delaware, which bond was in the hands of the defendant, and was taken out of his hands by the comptroller of the treasury. The defendant alleges that he was thereby prevented from getting into his hands the money due on it. and from retaining out of it the one-half the moiety belonging to the collector, according to an agreement between him and'that officer.
The transactions upon which this claim is founded are very dear and intelligible. Certain vessels had been seized in the district of Delaware, by the collector, for a violation of the laws of the United States, and prosecutions for the fines and forfeitures incurred, were instituted against them in that district; of course the district attorney of this district had. officially, nothing to do with these proceedings. But the collector of Delaware, having himself a large interest in these forfeitures, thought it expedient to come to Philadelphia and engage Mr. Ingersoll as his counsel, as he might have done any other gentleman of the law here or elsewhere. He made an agreement with Mr. Ingersoll, which was purely personal on both sides, by which he bound himself to divide with Mr. Ingersoll the moiety of these forfeitures, which would belong to him in the event of a recovery in the prosecutions. After this agreement was made, Mr. Ingersoll negotiated a compromise of the suits with the owners of the vessels and cargoes; one of which belonged to S. Girard, and two others to E. Thompson and others. From Mr. Girard Mr. Ingersoll received the sum of $53.245.10, one-half part of which belonged to the United States, and the other half to the collector and his counsel, with whom he had agreed to share it. A compromise was also effected with the owners of the other vessels and cargoes; but, they being unable to pay down the money as Mr. Girard had done, Mr. In-gersoll took their bond for the amount. With this the treasury officers were highly dissatisfied, and denied the authority of Mr. In-gersoll to do it. This bond, given by Mr. Thompson, was left by the collector in the hands of Mr. Ingersoll; some time after, but before the bond was paid, Mr. Ingersoll received a letter from the comptroller, in reply to a letter from Mr. Ingersoll which we have not; in this the comptroller says he has had a conversation with the secretary of the treasury, and continues: “We are of opinion that the bonds ought to be transmitted to the treasury. You will, therefore, send them to .this department” Mr. Ingersoll immediately transmitted the bonds to the comptroller, making no objection of any kind, claiming no right in them, nor giving any intimation of his interest in them under his agreement with the collector, or in any other way. The bonds were afterwards, by the collector, put into the hands of Mr. Duane, and the whole amount recovered and paid to the collector. The amount recovered was finally divided between the United States and the collector; the United 'States having received not a dollar more than their own money; and the collector having in his hands his own part as well as that which is claimed by Mr. Inger-soll. The ground of this charge then h gainst the United States is, not that they have received and held the money belonging to the defendant, but it rested on the allegation that an officer of the United States wrongfully dispossessed the defendant of the bonds; that, if he had not done so, the defendant would have recovered the money,. and not Mr. Duane, and thus have been enabled to retain from the collector the share due to himself. Supposing that the United States would be answerable to him, in this suit, for a tortious act, a wrong done by one of their accounting officers; where was the wrong here? The bond was given to a collector of the United States; as such he was-a trustee for the United States, at least for one-half of the amount secured by it. The direction to send it to the treasury was, as I understand, with the approbation of the collector, the other party interested in it; at least, we have heard of no objection on his part. Where then was the wrong on the part of the treasury officer? He knew nothing of Mr. Inger-soll’s claim or interest; he had no notice of his right; no violence was used to obtain possession of these bonds, no menace, hardly an order. The comptroller states the opinion of the secretary and himself, and thereupon says to Mr. Ingersoll: “You will, therefore, send them to this department.” It was done; and it was not until many years after-wards, that the treasury knew of Mr. Ingef-soll’s claim, or the agreement by which he supports it. • The money claimed by Mr. In-gersoll is in the hands of the collector, whom he has sued for it; and in that suit, the questions, whatever they may be, between him and the collector, will be examined and settled by a court and jury; and should we charge the United States with it, and the col[482]*482lector sliould afterwards show that nothing is due to Mr. Ingersoll, how could we remedy the injustice? If Mr. Ingersoll thought the bond was improperly and wrongfully called out of his hands, he should and might have resisted the call, and stated his reasons. The bond did not come into his hands as the attorney of the United States, as a public officer; and he was not bound to obey the call for it as a public officer, but had the same right over it as over any other paper placed in his hands by a client. I cannot see the shadow of a claim, in law or equity, upon the United States to answer this demand.
Every controversy brought before a judicial tribunal for decision must consist of matters of fact, and matters of law; and the legal justice of the case depends upon the facts as they appear by the evidence, and the due application of the law to those facts. Our system of trial is admirably contrived to obtain a decision consistent with the law and the facts. The latter are referred to a jury, whose natural intelligence and knowledge of men, and the business of men, make them excellent judges of the credibility and effect of evidence. On the other hand, the judge, from his legal education and studies, is better qualified to declare and apply the law to the case. The whole value of this mode of trial depends on the separate but harmonious action of these two powers; the power of the jury over the facts; of the court over the law. T.he law is a permanent system for all cases, and should be intrusted to an authority which is constant and permanent; the same to-morrow as to-day; for one man as for another. The judge in pronouncing it, acts under a personal as well as official responsibility. It must stand on an authority which is not versatile and uncertain, or there will be no security for any of the rights of persons or property for anybody. The opinion of one jury is no rule for another; the verdict of one has no binding power on another; it would be ruin to us all to confide in such a tribunal for the law. A great part of this case belongs to you, and be assured that I shall not disturb your possession of it. On the other hand, I deem it to be equally my right and duty to take possession of the part that belongs to the court, and to maintain the authority of the law, according to the best of my judgment, so far as it is intrusted to me.
There is another most valuable trait in our mode of trial, t mean its publicity; whether the final decision, as it respects money and property, may or may not be satisfactory to the parties, they are sure of this important effect from the trial, that the true character of the controversy will be fully explained and understood. If unjust, or illiberal imputations have gone abroad; if the motives, the conduct, the integrity, and fidelity of either of the parties have been misrepresented by injurious rumors, they will be dissipated, and the truth be made known by a public and thorough examination of the whole circumstances of the case before an impartial tribunal.
On the 6th April, 1837, the jury rendered a verdict for the plaintiffs for $3,985.78 and costs. The items appearing, from a paper handed by them to the district attorney, to be as follows:
Dr.
Mr. Ingersoll, with amount received from Rodman; but, as payment was immediately tendered, without interest.$ 7,971 14
Amount received in Toler v. Armstrong . 3,158 82
Amount received from Kinsman.. 1,679 07
$12,809 03
Or.
Mr. Ingersoll with costs in revenue cases taxed $1,740 05
Costs in criminal cases, taxed . 5,083 20
Counsel fees in Nieholl v. Couard, and Insurance Cos. v. Conard. 1,000 00
Counsel fees in Toler v. Armstrong . 1,000 00
•- 8.823 25
$3,985 78