604
FEDERAL REPORTER.
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.)
1.
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.
2.
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.
M.
a.
George, contra.
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
UNITED STATES 'V. GRISWOLD.
605
judgment, so that on May 9, 1885, there was still due thereon the sum of $23,576. On this day the district attomey, acting under the direction of the solicitor of the treasurJ', filed an amended motion in this court for leave to enter satisfaction of the judgment, in pursuance of an attempted compromise.of the debt by the secretary of the treasury under section 3469 of the Revised Statutes, on the payment by Griswold of the paltry sum of$100, notwithstanding the sum of $2,104.32 was then lying in the treasury to his credit.. The motion was denied on the ground that,the action was under the control of the prosecutor, B. F. Dowell, both for himself and the United· States, while the one-half of the mentis his private See U. S. v. Griswold, 24 Fed. Rep. 361. And;oti'errbt to this court, this ruling was affirmed by the circuit judge on April 13, 1887. On March 30,1887, the prosecutor filed a motion in this court to have this $2,104.32, the amount of seven Oregon and Washingtbu" Indian war claims then allowed and due said Griswold as assignee from the United States,set off against said judgment, under the act of March 3,1875. 18St.481. Due notice oithe motion was given to William C. Griswold, and William T., his son, J. H. Alberts, and George B. Miller, and there/mer it was argued by counsel and submitted. It appears, from the papers and documents accompanying the motion, that on January 16, 1879, the secretary of the treasury reported the claims in question, with others, to congress for appropriation, CH. R. Ex. Doc. No. 30,45 Cong.3 Sess.i) and afterwards, on March 3,1879, congress appropriated the money for their payment. 20 St. 423. One of these claims originally belonged to Timoleon Love, who sold it to George B. Miller, who appears to'have subsequently assigned it to Griswold. Miller now claims that Griswold imposed on him by procuring him to sign 'ahabsolute sale and assignment of the claim, when, in fact, he only proposeo to assign the claim for collection. However, he now . consents, through counsel for the motion, to the application of the same ,on the judgment, with the understanding that Dowell will settle with him .. It is also claimed by 'counsel opposed to the motion that Griswold has the claiulsitoAlberts, which appears to be formally true. On November 18, 1880, the second comptroller reported to the secretary of the treasury that the motley due on these claims was payable to Griswold,as assignee of the original owners, and not to Alberts, his assignee, on the ground that, the assignment to Griswold having taken place before the United States assumed the indebtedness, the case was not within the prohibition against the assignment of a claim upon the United Statescoritained in section 3477 of the Revised Statutes, while the assignment to Alberts was. On November 30, 1880, the secretary of the treasury instructed the third auditor to ";settle" the cases, and to deposit any amountthell due to Griswold, or which was due to him at any time after "the right of offset on his indebtedness to the government attached, to his credit in the treasury of the United States." In view of the pendency of this "action against Griswold, proceedings on these claims had been suspended by direction of the secretary prior to this time. Letter
606
]:'EPERA:L'R.E.E'0RTEU.
of A. M.Galigewer; acting- third auditor, to J. K.Uptpn, secretary of the treasury,Octobe!121, 1880. ., , . The act :oLMarch 3,1875., above referred to, provides" that, when any finaljudg l1l entrecovereClagainstthe United States, or other claim duly allowed by k[Jfitl authority" shall be presented to the secretary of the treasury for payment/and theplaintift'm,'·claimant therein shaJIpe indebted to the United States in 'any ma.nner, whether as principal surety, it shall be the duty of itbe secretary to withhold t,he payment ,of an amount of such judgment or claim equal to the debt thus due the '{Jnited Statesj and if such plaintiff or claimant assents to such set-oif, ,and discharges his judgment or an amount thereof ,eqUal to said debt or claimjthe secretary shall execute a discharge of the debt due from the plaintiff to the United States." The act also provides that, 'incase the party denies hJ.I3 indebtedness, or refuses to consent to the set-off, then the secretary shall withhold payment of sufficient of the judgment or claim due from the ,United States to ,secure the ,debt due the United States, and shall enforce the same by legal proceedings,. In common-law courts it is the established practice to set off cross-judgments in the same or different actions, in the same or different courts,between substantially the same parties, on It rule or order obtained on the summary application of either party to enter satisfaction in both actions for the amount of the smaller debt. Whart. Law Diet. "Set-Offj" Rap. & L. Law Diet. IISet-Offj" 1 Chit. PI. 608. I see no good .reason why a case like this should not be included in this practice. The party seeking to have the set-off made has a judgment in its favor on which it proposes to apply a debt admitted to be due from it to the judgment debtor. In effect, the proceeding is a credit by the United States of the amount due the judgment debtor on the judgment. But the act of 1875 appears to have committed this matter to the action of the secretary of the treasurYj and, as this is a case in which the debt' due the United States is already established by the jUdgment of this court, the secretary may at once apply the sum found due by the United States to Griswold, in part payment of the disburse the same to the prosecutor, who, as the owner of the judgment, will therefore become entitled to the money. When tbis is done, on the presentation in this , court of a transcript of the treasury proceeding, an order will be made directing the clerk to credit the defendant with flo payment on the judgment to that amount. The fact that the claim of the United States against Griswold has been reduced to judgment renders the assent of the latter to the set-offunneoesSl;l.ry. The amount of Griswold's claim has been established by the aocounting officers of the treasury, and that of the United States by the judgment of this court. It only remains for the secretary to apply the former in payment of the latter, as directed by the statute.
KNAPP, STOUT
&;
CO. COMPANY
11.
NATIONAL :MUT. FIRE
INS. CO.
607
FERGUS, Petitioner. (Oircuit (JOU'l't,D. Mauflc1l;u,etta. :March 22, 1887.)
In extradition proceedings, where the first warrant of arrest is of questionable regularity, and no order is entered upon the first complaint and warrant, the diBtr,ict judge has power, un{}er Rev. St. § 5270, to issue a second warrant, the arrest of the defendant upon which will not be held void on MbSaB W1'p'IU.
WAR1UNT-HAlJEA8 CORPus.
/
Habeaa, (})ryua. John W. Corcoran, for petitioner. OWen A., Galvin, Asst. U. S. Atty., for the United. States. ,CoLT",J. I fi,nd no sufficient ground on which to grant this petitiQn. The first warrant directed the marshal or his deputies to arrest the petitioner if found within their district. He was arrested by a deputymarshal on this warrant in New York state. The evidence is that, after his arrest in New York, the petitioner came voluntarily into Massachusetts. Under the form of the first warrant, there being a question whether the petitioner could be held upon it, a second warrant was issued by the district judge upon a second complaint, and no order was made upon the first complaint and warrant. Itis contended that the court had no power to issue a second warrant under the circumstances. We are here dealing a case arising under the extradition law; and it has been held that a warrant may run throughout the United States, and may be executed by any marshal or deputy-marshal in any district. The fugitive is not apprehended for any crime committed against the United States, for which he is amenable to trial in any particular district. His extradition is not sought ftom any district as such, but from the United States. In re Henrich, 5 Blatchf. 414; Spear, Extr. 254. Upon the state of facts presented in this petition, I think the court had power, under section 5270 of Revised Statutes, to Issue a second warrant. The other objections raised are immaterial. Petition dismissed.
KNAPP, STOUT & Co. COMPANY
tl.
NATIONAl, MUT. FIRE INS. Co.
SAME v. PEOPLE'S MUT. FIRE INS. Co. (Oircuit (Jourt,E. D. MifJ8ouri, E. D. WRrr8-'-FOREIGN INSURANCE CO:MPANlES-SERVlCE.
April 21, 1887.
In Missouri, a foreign insurance company is prohibited from carrying on business until it has filed with the insurance commissioner a certificate stipulating that service may be made upon him; and, where it is alleli\ed in the petition that a foreign company is doing busin,ess in the state, it WIll be presumedthatit has complied with the law, and default will be entered on servhe have refused tp receive the summons. ice upon the commissioner,
