SHELLEY". COUNTY OF
COLT, J. I am satisfied that the motion to quash must pre",aiI, upon the grounds-First, of want of notice on the part of the defendants; and, second, because the writ is irregular in form, it being a compound writ of mandamus and certiorari. These two objections are so clear on reason and authority is unnecessary to enla.rge upon them. The r\lle is well established in this country no peremptory manda· mus shall issue without notice in some form to the defendant, or a waiver of notice by an appearance. The wisdom of this rule is well illustrated in this case; for surely this court ought not to command a judge of the district court (assuming the power in such a case) to do that which he says wO\lld be. false, without notice to him, and opportunity to be fully · heard. As to the second ground, there seems to be no precedent for combining writs of certiorari and mandamus. Each being distinct, and having its prescribed functions, it would be irregular to join both in one writ. Such a course ma.y lead to much confusion, for rules which apply tu one writ may not apply to the other; whereas, if each is kept distinct, we can deal with it according to the rules of which are applicable to it. Motion to quash sustained.
(O';rcuit Oourt, E. D. Mis8ouri, E. D. A.pril 20, 1887.)
TO LEVY TAX. Where a county court refuses to levy a tax required by law to be levied for the payment of county bonds, a mandamus will go to compel such levy.
SAME-ADJUSTMENT OF .EQUITIES.
Where bonds, maturing in different years, were issued for the improve· ment of certain lands upon which they were made a lien until paid, and the law required the county court to levy enough taxes upon such lands each to pay the annual interest on such bonds, and all bonds maturing the followmg year, allowing at least 25 per cent. for delinquent taxes, and the county court only levied enough, if all collected, to pay the interest and bonds, and allowed nothing for delinquencies, and delinquent suits were instituted, and ,certain tracts sold under judgments recovered, and some of the purchasers were bona fide, held, that this court cannot attempt, in mandamu8 proceedings, to apportion or determine the equities which exist, and will not issue. 8 mandamu8 to compel a second levy upon lands sold, for the payment of bonds due before such sales were made.
This is a proceedinF; by manaamU8 against the judges of the county court of St. Charles county to enforce the satisfaction of a judgment recovered in this court upon certain bonds and coupons issued by St. Charles county, under certain acts of 1869 and 1870, for the improvement by drainage of certain lands lying in said county,. known as the "Marias Temps Clair District," and to that end compel the levy of a sufficient tax to pay said judgment, less the amount already paid thereon· . For other material facts, see 28 Fed. Rep. 875.
E. B. Sherrer, for relator. Dyer, Lee & Ellis and C/a$fleman, Hough &- Denison, for respondent.
BREWER, J., (orally.) In the, case of Shelley,relator, against St. Charles county, the relator is to a mandamus, SO far tl.!3 respects l>onds for which no levy has' made. Provision to that effect is in the di'der which,is herewith approved. So far as the balance of the judgment is concerned, the plaintiff is not entitled to mandamus. There were judicial sales made under proceediiigs in the courts, after the failure of ·the ordinary 'tax levies, and there', were on those judicial sales some bona ftdepurchasers. As' we intimated in the course of one 'of the arguments in the case, we, think the pflrties who bought under these judicial sales are'entitled to proteCtion,'ahd tha:t' the relator's remedy (if he have any) for the 'oalancepf the jUdgment Illust be in some other proc(leding. We cannot in mandamus'attempt to apportion or determine the equi. ties which exiSt, so that, as to .the balance of the judgment, the application for fl'Umoomus will be refused.
UNITED STATES, by DOWELL, Prosecutor, ". GRISWOLD.
(JJiaflriot (Jourt,:D. Oregon. May 3, 1887.)
By the practice at common law, a court might set off cross-judgments in the same or different actions, in t,b.e same or different courts. between sub· parties. on the application of either ,to enter satisfaction stantially the in both actions for the amount o:fthe smaller debt. ' ·
CLAIMS AGAINST UNITED STATES-SET-O;F;F-JUDGMENT.
The authority to settle claims due to and from the United States by setting one off against the other, as provided in the act of March 8, 1875. (18 St. 481.) is thereby conferred exclusively Oll the secretary of the treasury; and this ,court is not authorizedto set off a claim 'allowed in the treasury department to the defendant in this action,agaiBstthe judgment therein.,
(Syllabus by the Oourt.)
Action to Recover DllJIJages and Penalties.
James K. Kelly, for the motion.
DEADY, J On July 30, 1879, a judgment was given in this court in the qui tam action of the United States, by B. F. Dowell. prosecutor, against William Griswold, for $35,228, with costs and disbursements, amounting to $2,875.60, on account of certain forfeitures and damages incurred by him in knowingly making, presenting, and obtaining payment from the treasury of the United StatfS, in January, 1874, of certain false and forged claims, contrary to section 5438 of the Revised Statutes. Afterwards divers slims were collected and credited on the