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the comptroller shall institute suit for the recovery thereof, adding to the sum stated to be due on such account, the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced, and judgment obtained thereon, and an interest of six per centum per annum, from the time of receiving the money until it shall be repaid into the treasury.(l)
296. In any suit which shall be hereafter instituted by the United States, against any corporate body, for the recovery of money upon any bill, note, or other security, it shall be lawful to summon, as garnishees, the debtors of such corporation; and it shall be the duty of any person, so summoned, to appear in open court, and depose, in writing, to the amount which he was indebted to such corporation, at the time of the service of the summons, and at the time of making such deposition; and it shall be lawful to enter up judgment in favour of the United States, for the sum admitted by such garnishee to be due to such corporation, in the same manner as if it had been due and owing to the United States: But no judgment shall be rendered against any garnishee, until after judgment shall have been rendered against the corporation defendant to such action, nor until the sum in which the garnishee may stand indebted be actually due.(2)
Where any person summoned as garnishee shall depose in open court that he is not indebted to such corporation, nor was at the time of the service of the summons, the United States may tender an issue upon such demand, and if, upon the trial of such issue, a verdict be rendered against such garnishee, judgment shall be entered in favour of the United States, pursuant to such verdict, with costs of suit.(3)
297. If any person summoned as garnishee under the foregoing provisions, shall fail to appear at the term of the court to which he has been summoned, he shall be subject to attachment for contempt of the court.(4)
298. The attorneys of the United States, for the several judicial districts in the prosecution of all suits therein in the name and for the benefit of the United States, shall conform to such directions and instructions, as shall, from time to time, be given to them respectively, by the agent (solicitor) of the treasury. And they shall, immediately after the end of every term of
(I) Act 3d March, 1797, sec. 1. (3) Act 20th April, 1818, sec. 9.
(2) Act 20th April, 1818, sec. 8. (4) Ibid. sec. 10.
Where a bank, in which the bonds for customs were left under the authority of the government, discounted for the principal obligor, certain notes for the payment of these bonds, and the proceeds were carried to the credit of the United States in bank, in discharge of the bonds, and it turned out that the endorsements on the notes were forgeries, practised by the principal: it was held that the bonds were discharged, and that there was no remedy in equity to acquire a priority on the assets of the principal.—United States v. Rousmanieres' admr. 2 Mason, 373.
P. as surety for S. in a bond for duties, paid the amount of the bond to the United States, and S. having become insolvent, assigned his effects to B. in trust, first to pay his custom house bonds, then to indemnify his sureties, and the residue for his general creditors. B. received from the estate of S. four thousand dollars, which he mixed with his own moneys, became bankrupt, and R. and others were appointed his assignees. Held, that P. was not entitled to be paid by the assignees, in preference to the general creditors of B. but that the United States would so have been entitled had they been the plaintiffs. Pollock v. Pratt et al. assignees, 2 Wash. C. C. R. 490.
A surety in custom house bonds, who has paid the same after a commission of bankruptcy had issued against his principal, is entitled to a preference over the general creditors, and is to be first paid out of the effects of the bankruptcy. Mott v. .Morris, assignee, 2 Wash. C, C. R. 196.
If the persons or property of the debtors of the United States, are within the jurisdiction of our courts, the United States have a priority over all other claimants. —Harrison v. Sterry et al. Bee, 244.
the district and circuit courts, or of any state court, in which any suit or action may be pending, on behalf of the United States, under their direction respectively, forward to the agent (solicitor) of the treasury a statement of the cases which have been decided during such term, together with such information touching such cases as may not have been decided, as may be required by such officer.(l)
299. In every case of delinquency, where suit has been, or shall be instituted, a transcript from the books and proceedings of the treasury certified by the register, and authenticated under the seal of the department, and in cases relating to the accounts of the war and navy departments, such transcript signed by the auditors respectively, charged with the examination of these accounts,(2) shall be admitted as evidence, and the court trying the cause may grant judgment, and award execution, accordingly. And all copies of bonds, contracts, or other papers, relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the register to be true copies of the originals on file, and authenticated under the seal of the department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit, which would be due to the original papers if produced and authenticated in court: where suit is brought upon a bond, or other sealed instrument, and the defendant shall plead " non est factum," (or) upon motion to the court, such plea or motion being verified by the oath or affirmation of the defendant, the court may take the same into consideration, and (if it shall appear to be necessary for the attainment of justice) may require the production of the original bond, contract, or other paper specified in such affidavit.(3)
300. Where suit shall be instituted against any person indebted to the United States, the court where the same may be pending, shall grant judgment at the return term, upon motion, unless the defendant shall, in open court, (the United States' attorney being present,) make oath or affirmau'on, that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury, and rejected, specifying each particular claim so rejected, in the affidavit; and that he cannot then come safely to trial. Oath or affirmation to this effect being made, subscribed, and filed, if the court be thereupon satisfied, a continuance, until the next succeeding term, may be granted; but not otherwise, unless as provided in the preceding section.(4)
301. In suits between the United States and individuals, no claim for a credit shall be admitted, upon trial, but such as shall appear to have been presented to the accounting officers of the treasury, for their examination, and by them disallowed, in whole or in part, unless it be proved, to the satisfaction of the court, that the defendant is, at the time of trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit, at the treasury, by absence from the United States, or some unavoidable accident.(S)*
(1) Act Mav 15th, 1820, sec. 7. Act ton v. United States. 9 Wheat, 651. Mav 29th, 18i0. (4) Act 3d March, 1797, sec. 3.
(2) Act March 3d, 1817, sec. 11. (5) Act 3d March, 1797, sec. 4. Uni
(3) Act March 3d, 1797, sec. 2. Wal- ted States v. Giles, 9 Cranch, 213.
• Tbe defendant on trial shall have full benefit of any credit, whether arising out of the particular transaction on which he is sued, or any distinct and independent transaction which can constitute a legal or equitable set-off.—United States T. Wilkina, 6 Wheat, 144. U. S. v. Kobeson, 9 Peters, 319. See United States v. Hawkins, 10 Peters, 125.
302. The clerks of the district and circuit courts, within thirty days after the adjournment of each successive term of such courts respectively, shall forward to the agent (solicitor) of the treasury a list of all judgments and decrees which have been entered in such courts respectively, during such term, to which the United States are parties, showing the amount which has been so adjudged or decreed for or against the United States, and stating the term to which execution thereon will be returnable. The marshals of the several judicial districts of the United States, within thirty days before the commencement of the several terms of the courts, shall make returns to such agent (solicitor) of the proceedings which have taken place upon all writs of execution or other process which have been placed in his hands for the collection of the money which has been so adjudged and decreed to the United States, in the said courts respectively.(l)
303. All writs of execution upon any judgment obtained for the use of the United" States, in any of the courts of the United States, in one state, may run and be executed in any other state, or in any of the territories of the United States, but shall be issued from, and made returnable to, the court where the judgment was obtained.(2)
304. Nothing in the act of March third, 1797, shall repeal or impair any legal remedy for the recovery of debts, taxes or demands due to the United States, in law or equity, from any person, which remedy might be used if such act were not in force.(3)
305. The United States cannot be sued.(4) No other remedy exists for a creditor who is refused payment at the treasury or elsewhere than an application to congress; there is no lien against the government for advances made to its use.(5)
But no claim for credit can be admitted at the trial which has not been presented to the accounting officer of the treasury, although no proceedings have been had by notification under the act of March 3d, 1795, supra, page 59.—Walton r. United States, 9 Wheat, 651.
Nor is a debtor entitled to credit for money received by an agent of an officer of the United States, whose office becomes extinct before the money is received by the agent.—United States v. Patterson, 7 Cr. 575.
Remedies for Creditors of the United State*.
OF THE GENERAL LAND OFFICE.
Executive duties relative to public
Principal clerk, of the public lands
Duty of principal clerk of the sur-
of the recorder of land office 309
— of solicitor—his salary 310
President to appoint secretary to
Commissioner to certify copies of
Clerk of private land claims to per-
Registers of land offices to make
Salaries of officers of land offices
and clerks—number of clerks 315 Repeal of former laws 316 Time for which land office and other
offices shaft be kept open 317 Officers of land office prohibited to
purchase public land—penalty 318 Oath of officers 319 Seal of office—copies of records,&c.
under seal to be evidence 320 Commissioner to take charge of certain books and records 321
to make plats of surveys, and
give information on the requisition of president or congress 322 .Warrants for military lands granted by secretary of war—record to be made and patent issue from land office 323 Patents how issued—recorded, &c. 324 Keturns relative to public lands to be made to commissioner 325
306. The executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land office, under the direction of the president of the United States.(l)
307. There shall be so appointed in said office two subordinate officers, one of whom shall be called principal clerk of the public lands, and the other principal clerk on private land claims, who shall perform such duties as may be assigned to them by the commissioner of the general land office; and in case of vacancy in the office of the commissioner of the general land office, or of the absence or sickness of the commissioner, the duties of said office shall devolve upon and be performed, ad interim, by the principal clerk of the public Iands.(2)
308. There shall be so appointed an officer to be styled the principal clerk of the surveys, whose duty it shall be to direct and superintend the making of surveys, the returns thereof, and all matters relating thereto, which are done through the officers of the surveyor general; and he shall perform such other duties as may be assigned to him by the commissioner of the general land office.(3)
309. There shall be so appointed a recorder of the general land office, whose duty it shall be, in pursuance of instructions from the commissioner, to certify and affix the seal of the general land office to all patents for public lands, and he shall attend to the correct engrossing and recording and trans
(1) Act 4th July, 1836, sec. 1.
(2) Ibid. sec . 2.
(3) Act 4th July, 1836, sec. 3.
mission of such patents. He shall prepare alphabetical indexes of the names of patentees, and of persons entitled to patents; and he shall prepare such copies and exemplifications of matters on file, or recorded in the general land office, as the commissioner may from time to time direct.(l)
310. There shall be so appointed an officer to be called the solicitor of the general land office, with an annual salary of two thousand dollars, whose duty it shall be to examine and present a report to the commissioner, of the state of facts in all cases referred by the commissioner to his attention which shall involve questions of law, or where the facts are in controversy between the agents of the government and individuals, or there are conflicting claims of parties before the department, with his opinion thereon; and also, to advise the commissioner, when required thereto, on all questions growing out of the management of the public lands, or the title thereto, private land claims, Virginia military scrip, bounty lands, and pre-emption claims; and to render such further professional services in the business of the department as may be required, and shall be connected with the discharge of the duties thereof.(2)
311. The president, by and with the consent of the senate, may appoint a secretary, with a salary of fifteen hundred dollars per annum, whose duty it shall be, under the direction of the president, to sign in his name, and for him, all patents for land sold or granted under the authority of the United States.(3)
312. It shall be the duty of the commissioner to cause to be prepared, and to certify, under the seal of the general land office, such copies of records, books, and papers on file in his office, as may be applied for, to be used in evidence in courts of justice.(4)
313. Whenever the office of recorder shall become vacant, or in case of the sickness or absence of the recorder, the duties of his office shall be performed, ad interim, by the principal clerk on private land claims.(5)
314. The receivers of the land offices shall make to the secretary of the treasury monthly returns of the moneys received in their several offices, and pay over such money pursuant to his instructions. And they shall also make to the commissioner of the general land 6ffice, like monthly returns, and transmit to him quarterly accounts current of the debits and credits of their several offices with the United States.(6)
315. The commissioner of the general land office receives an annual salary of three thousand dollars; the recorder of the general land office, an annual salary of fifteen hundred dollars; the principal clerk of the surveys, an annual salary of eighteen hundred dollars; and each of the said principal clerks, an annual salary of eighteen hundred dollars; from and after the date of their respective commissions; and the said commissioner is authorized to employ, for the service of the general land office, one clerk, whose annual salary shall not exceed fifteen hundred dollars; four clerks, whose annual salary shall not exceed fourteen hundred dollars each; sixteen clerks, whose annual salary shall not exceed thirteen hundred dollars each; twenty clerks, whose annual salary shall not exceed twelve hundred dollars each; five clerks, whose annual salary shall not exceed eleven hundred dollars each; thirty-five clerks, whose annual salary shall not exceed one thousand dollars each; one principal draughtsman, whose annual salary shall not exceed fifteen hundred dollars; one assistant draughts