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ney, 1 Story, 310; Brush rs. Robbins, 3 McLean, 486; Appleton is. Smith, 1 Dillon, 202; Oliver us. Andrews, 6 Pet., 143.

This is, therefore, not a case in which the maxim, Concensus tollit erroiem, can apply, for there was no legal or authorized consent to vacate any part of the judgment. Neither the attorney of the United States nor the Commissioner of Internal Revenue was authorized, nor were both together authorized, to give such consent. The Government can only be bound by the acts of its agents when the acts are authorized.

There is the additional objection here, that the order to modify the judgment was made after its full payment.

Such payment forever estopped the debtor from objecting to the judgment or demanding a refund of the money paid. (Marriott vs. Hampton, 7 Term R., 269; Broom, Leg. Max., 332; Hamlet vs. Richardson, 9 Bing., 644, (23 E. C. L. R.;) Canaan vs. Reynolds, 5 E. & B., 301, (85 E. C. L. R.;) Duke vs. Collins, 4 Ad. & El., 866, (31 E. C. L. R.;) Wilson vs. Ray, 10 A. & E., 88, (51 E. C. L. R.;) Brown vs. McKinally, 1 Esp., 279; Milnes vs. Duncan, 6 B. & C., 679, (13 E. C. L. R.;) Moses x's. Macfarlaine, 2 Burr., 1009; Phillips vs. Hunter, 2 H. Bl., 414; Brisbave vs. Dacres, 5 Taunt., 160, (1 E. C. L. R.;) Preston vs. Peeke, E. B. & E., 336, (96 E. C. L. R.;) Mortimer vs. South Wales, R. C., 1 E. & E., 382, (102 E. C. L. R.;) Notman vs. Anchor, 6 C. B., N. S., 536, (95 E. C. L. R.;) Kelly vs. Moray, L. R., 1 C. P., 667; Williams vs. Sitmouth, L. R., 2 Ex., 281; 1 Y. & Coll., 189; Craven vs. Smith, L. R., 1 Ex., 119; Irwin vs. Gray, 19 C. B., N. S. 585, (115 E. C. L. R.;) A. G. vs. Dean, 8 H. Lords Cas., 369; Beamish vs. Beamish, 9 Id., 274.

A party who is aggrieved by a judgment may have a writ of error, and thus ascertain whether there be error in it. If he have paid the judgment and it be reversed, he has a remedy.

In the English practice, when an execution is levied on a leasehold estate and the term thereof sold to a third person, the sale is good, though the judgment be revised; and the judgment debtor can only have the money which it sold for; but, if the term be delivered to the creditor himself at a certain value, the action is by scire facias. (Hoe's case, 5 Co., 91; 7 Mod., 151, 156; 11 Id., 25; 1 Salk., 24; Stickney vs. Atwood, Mass. S. J. Court, June, 1784; Bingham rs. Cabot, Id., Nov., 1794, Essex; ? Saund., 101; Cro. El., 425, 159, 806; Farr. R., 151; Roll. Abr., 775, 776, 777; Bird vs. Orms, Cro. Jac., 289, 290; 2 Wils., 141; 3 Id., 177; 2 Bac., 229; 3 Mass. R., 32; Hob., 6; 3 Cr., 492.)

For the American doctrine and practice on this subject, see Freeman on Judgments, chap. XXI. (Rev. Stats., 614, 633, 635, 691, 693, 702, 706, 709, 988, 997–1011, 1017; South Fork Canal Co. vs. Gordon, 2 Abb., C. S. C. & D. Rep., 479, 488; Mayhee vs. Kellogg, 24 Wend., 32; Clark vs. Pimey, 6 Cowen, 297; Green vs. Stone, 1 How. & John., Md., 105; Isom rs. Johns, 2 Munf., Va., 272; Parker vs. Anderson, 5 T. B. Monr., Ky., 455; 18 Ala., 405; 30 Cal., 458; 7 1d., 443; 9 Id., 16; 14 Id., 667; 18 Id., 275; 12 Barb., 67; 18 1d., 578; 27 Ind., 83; 4 Wend., 95; 11 Mo., 416; 23 Ala., 296; 27 Ia., 239, 301; 8 Ohio, 120; 19 La. Ann., 69; 7 Rob., 336; 4 Abb. Pr., N. S., 53; 2 Ala., 325; 47 III., 433.)

C'pon a reversal, unless a new judgment be recovered for the same cause of action, the judgment debtor who has paid, either voluntarily or otherwise, can recover back the money paid. In the present cas, however, there has been no reversal.

Money voluntarily paid, even without judgment, cannot be recovered back. (Receiver's case, 1 Lawrence, Compt. Dec., 367; Supervisors vs. Briggs, 2 Denio, 26.)

The vacation of a portion of the judgment did not give a right to a restoration of the money paid. It did not in terms profess to do so. It could not produce any such legal result.

By payment, the title to the money vested in the United States. The money has been covered into the Treasury, and the title to it can ouly be divested by act of Congress, or by “due process of law.” (Const., art. V., Amendments.)

The Government enjoys as full protection of its rights and property as private citizens. The right to protection does not exist by force of the Constitution merely, but by principles of the common law, imbelded in our system, which antedate the Constitution, and exist independently of it. (Parham vs. Justices, 9 Ga., 349; Lawrence's Law of Claims against Governments, House Rep. No. 134, 2d Sess. 311 Cong., 201.)

The claim now made is not placed upon the ground that a title to the money already paid has been revested in the claimant by the order of the court; but it rests upon the assumption that the payment was for a tax illegally collected.

The claim is made under provisions of the Revised Statutes, which are as follow:

"Sec. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected Sec. 3689. There are appropriated *

such sums as may to refund and pay back duties erroneously or illegally assessed or collected under the internal-revenue laws.”

There are two modes of collecting internal-revenue taxes—by the proper collector, in the accustomed way; and by suit, as in this case.




be necessary



When, in an action, there is a judgment in favor of the United States for a sum, as in the case in hand, claimed as taxes legally due, this is the highest evidence that they are legally due.

Whenever a cause of action transit in rem judicatam, a final judg. ment is pro eadem causâ forever conclusive on all parties and privies: the rights determined by it can never again be lawfully called in question or disputed. In legal contemplation, such a judgment is so conclusive that its justness and morality are forever established beyond contradiction. It is ultima ratio; the Ultima Thule of the realm of litigation. It is reason and justice so firmly evidenced by record, that no "accusing spirit” can ever make complaint against it or demand that it be blotted out. It is "absolute verity.” (R. vr. Carlile, 2 B. & Ad.,

“ 367; 1 Inst., 260; Reed vs. Jackson, 1 East, 355; Broom, Leg. Max., 334.

For all the purposes now being considered, a final judgment converts fraud and force into virtue and peace. (De Medina vs. Grove, 10 Q. B., 152, 168; 59 E. C. L. R.) It is so potential that it makes vice, virtue; folly, wisdom; wrong, right.

To use the language of the civilians, res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum.

The finality of a judgment is not merely a matter of private concern; for, interest reipublicce ut sit finis litium.

No executive officer has authority to call in question the point adjudicated in this case-namely, that the tax was legally due. (Supervisors rs. Briggs, 2 Hill, 135; S. C., 2 Denio, 26; Andre rs. Redfield, 12 Blatch. C. C., 407; s. C., nom. Andreæ vs. Redfield, 98 U. S., 225; Viser's case, 1 Lawrence, Compt. Dec., 75.)

The Government has fewer facilities for protection against unjust claims, or for ascertaining after a long period the merits of a judgment, than natural persons, who are in propria personâ vigilant of, and in situation to guard, their interests. Hence the Government, more than natural persons, needs the benetit of the maxim, Nemo debet bis rexari pro una et eidem causa. (5 Rep., 61.)

No writ of error lies from judicial judgments to executive officers.
The judgment in this case is right without moditication.
The Revised Statutes provide as follows:

“SEC. 3260. Every person intending to commence or to continue the business of a distiller shall, on filing with the collector his notice of such intention, and before proceeding with such business, and on the first day of Way of each succeeding year, execute a bond in the form prescribd by the Commissioner of Internal Rerenue, conditioned that he shall faithfully comply with all the provisions of law relating to the duties and business of distillers, and shall pay all penalties incurred or fines imposed on him for a violation of any of the said provisions; and

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that he shall not suffer the lot or tract of land on which the distillery stands, or any part thereof, or any of the distilling-apparatus, to be incumbered by mortgage, judgment, or other lien, during the time in which he shall carry on said business. Said bond shall be with at least two sureties, approved by the collector of the district, and for a penal sum not less than double the amount of tax on the spirits that can be distilled in his distillery during a period of fifteen days.

A new bond shall be required in case of the death, insolvency, or removal of either of the sureties, and may be required in any other contingency at the discretion of the collector or Commissioner of Internal Revenue. Every person who fails or refuses to give the bond hereinbefore re. quired, or to renew the same,

shall forfeit the distillery, distilling-apparatus, and all real estate and premises connected therewith, and shall be fined not less than five hundred dollars nor more than five thousand dollars, and imprisoned not less than six months nor more than two years."

The ground upon which the judgment is claimed to have been erroneous is, that the bond, dated February 12, 1869, was only operative to May 1, 1869.

Undoubtedly, the collector might have required a new bond on the first day of May, 1869, unless, indeed, the words “first day of May of each succeeding year” would carry his authority over to the year 1870. It is equally clear that the bond in this case might have been condi. tioned for compliance with the revenue laws only until May 1, 1869.

The makers of it, however, did not choose to so limit their liability. The bond is in form indefinite as to time, and, since no other bond appears to hare been given, it wils so regarded by the parties thereto, and by the court which rendered judgment upon it.

As a roluntary bond, it is valid. U. S. 18. Tingey, 5 Pet., 115; Farrar vs. U. S., 5 Pet., 373; U. S. vs. Bradley, 10 Pet., 343; U. S. rs. Garlinghouse, 4 Benedict's R., 194; U. S. vs. Mason, 2 Bond, 183; Osborn vs. U. S., 16 Int. Rev. Rec., 141; s. C., 4 Leg. Gaz., 343; U. S. vs. Hosmer, 17 Int. Rev. Rec., 38; Greathouse vs. Dunlap, 3 McLean, 303; U. S. vs. Brown, Gilp., 155; Dixon vs. U.S., 1 Brock., 178; Id., 195; U.S. rs. Howell, 4 Wash. C. C., 620; U. S. vs. Maurice, 2 Brock., 96; 6 Op. Att.-Gen., 24; P. M. Gen. vs. Early, 12 Wheat., 136; Broome vs. ('. S., 15 How., 143.)

It may well be questioned whether the makers of a bond, the principal in which he avails himself of its continuous provisions, are not estopped to deny their liability. (Sparks vs. Bank, 9 Am. Law Reg., N. S., 365; State vs. Daniel, 6 Jones, N. C. Law, 114; Placer Co. vs. Dickenson, 45 (‘al., 12; Thompson vs. State, 37 Miss., 578; State vs. Berg, 50 Ind., 496; Harris vs. Babbitt, 4 Dill. C. C., 191.)

The provision authorizing the Commissioner to require a new bond may be considered as directory. The forfeiture declared in the last clause of section 3260 is waived by the Government if not judicially prosecuted. This case is very different from that of the United States vs. Smith, 8 Wall., 587, and from that stated in the Attorney-General's opinion of April 5, 1877, (15 Op., 214.)

The result is, that the claimant has no valid claim. No balance can be certified in his favor.

The claim is rejected. There is no balance due on the Fifth Auditor's statement of the account. TREASURY DEPARTMENT,

First Comptroller's Office, March 30, 1881.



1. The "fiscal" officer of a private charitable corporation, for the use of which Con.

gress has made an appropriation, is required to render an account of expendi. tures, to be settled in the Department of the Treasury. (Rev. Stats., 236,

3623.) 2. The First Auditor of the Treasury has jurisdiction “to receive and examine all

accounts” not by law specifically, or by reasonable inference, assigned to some other accounting officer, although they may not be mentioned in terms in the statutes prescribing his duties. Hence, he has jurisdiction of the accounts of the fiscal officers of private charitable corporations as to their disbursements

of appropriations made by Congress. 3. The fiscal officer of such a corporation is not an officer of the United States; yet

is, in some respects, an agent or person in the serrice of the Government. But coal and wood purchased by such fiscal officer for the use of a private charitable corporation are not, within section 3711 of the Revised Statutes, “for the public service.” Hence, vouchers of payments made for purchases of such

coal or wood do not require evidence of inspection under that section. 4. Section 3711 of the Revised Statutes requires coal or wood purchased for the use

of benevolent institutions, supported and managed by officers or agents of the Government, to be inspected. Vouchers of payments made for such purchases

cannot be allowed without evidence of inspection. 5. Inspectors, under section 3711, are to be appointed by the head of the Depart

ment for the service of which purchases are made. If the purchase is for a branch of the public service not under the control of a regular Department, (e. g., the “Government Printing Office” or the “Botanical Garden,") the

chief officer of such branch appoints the inspector. 6. The fiscal officer of a private charitable corporation who wilfully fails to render

accounts showing a lawful disbursement of the money appropriated by Congress may, on proper evidence, be punished as for embezzlement.

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