88
FEDERAL REPORTER,
vol. 70.
of the inC()me of the mortgaged propert)' in preference to the mortgage debts, 'l.'he cases cited b)'counsel for appellee in which such an j)rdeT' was made do not rule this case. Dow v. Railroad Co., 20 Fed. 260; Central Trust Co. v. Texas & St. L. R)'. Co., 22 Fed. 135. There is a statute in Arkansas which provides in terms that all persons injured by any railroad through actionable negligence shall liave a lien on the railroad and appurtenances paramount to that of all other persons interested in it, whether their interest is 'prior in time to the injury or not. Sand. & H. Dig. Ark. § 6251. But we have not considered that statute, or its legal effect, because at the final hearing in the court belowcollnsel for the appellee stated that he did not rely upon it further than to sbow the poliq of the state in that regard, and the circuit court evidently did not consider it. The order appealed fro)31 must be reversed, with costs, and it is so ordered. UNITED STATES v. BIGGERT. (Circuit Court of Appeals, Eighth Circuit. No. 481. September 16, 1895.)
UNITED STATES GOVERNMENT-MISTAKE IN SETTLING CLAIM-VACATING SATISFACTION' OF' JUDGMENT.
The UtiitedStates recovered a judgment for $5,577 against B. and E. The defendants made an offer to settle the judgment for $1,000 and costs, which was accepted, and the judgment satisfied. Subsequently, the officers 01 the treasury department discovered that two items of $344 'and $434, respectively, were due to B. on the treasury books, and had been allowed before the recovery of the jUdgment, and retained to await the result of the suit. The United States attorney, by direction of the secretary of the treasury, moved to set aside the satisfaction of the jUdgment on the ground that the settlement had been inadvertently made, in ignorance of the claims due to B. Held, that the existence of the indebtedness to b. alone, which was not shown to have any connection with the transactions out of which the judgment arose, was no ground for setting aside the settlement of the judgment against B. and E. jointly.
In Error to the District Court of the United States for the District of Kansas. On the 9th of October, 1891, the United Stlltes recovered a judgment in the United States district court for the district of Kansas, Second, division, William C. and Neal W. Evans, for the sum of $5,577.50. quently, and Evans made a proposition to the United States to com promise this jUdgment by paying into the treasury, in full satisfaction thereof, $1,000 and the costs, which sum was deposited at the time with the secretary of the treasury.' The secretary of the treasury, acting under authority con· ferred on him by section 3469 of the Revised Statutes of the United States, accepted the proposition of compromise, in the following terms: "Department of Justice, "Oflice of the Solicitor of the Treasury. "Washington, D. C., April 26th, 1892. "Sir: I have to inform you that the acting secretary of the treasury has accepted the offer of William C. Biggert and Neal W. Evans to pay $1,000 and costs-in all, $1,092.60-in compromise of a judgment for $5,577.50 obtained against them on the 9th of October, last, in a suit brought on the bond
UNITED STATES V. BIGGERT.
39
of said Biggert for the recovery of daJ;llages claimed by the government b)' reason of his failure to enter into a contract for delivery of 1,000 tons of hay at Fort Reno during the fiscal year ending Julie 30, '1888. The amount ten· dered and costs having already been deposited, you are authorized to cause the judgment in question to be satisfied of record. I will thank you to advise· this office of your action in the matter. "Very respectfully, F.A. Reeve, Acting Solicitor. "Joseph W. Ady, Esq., U. S. Attorney, Topeka, Kansas." In compliance with the instructions of the secretary of the treasury contained in this letter, Mr. Ady, the district attorney for the district of I{ansas, entered satisfaction of the judgment as follows: "United States vs. Keal W. Evans and W. C. Biggert. "By direction of the secretary of the treasury, the within judgment against the above-named defendants is hereby, and in accordance to the acceptance of the compromise by the honorable secretary of the treasury, fully discharged and canceled, and the same to be held for naught, this 31st day of May, 1892. "J. W. Ady, United States Attorney, "By P. L. Soper, Asst. U. S. Attorney." Afterwards, the secretary of the treasury wrote the following letter to the solicitor of the treasury: "Treasury Department, Office of the secretary. "Washington, D. C., July 6, 1892. "To the Solicitor of the l'reasury-Sir: The department received the letter of the acting solicitor, dated the 2d instant, in reply to the department lettel' of the 1st instant, relating to the compromise, for $1,000.00 and costs, of the judgment against Wm. C. Biggert for $5,577.50, and the two items of $344.21 and $434.02 found due him by the accounting officers, and still retained in the treasury. The report fi'om YOUI' office is that the United States attorney for Kan.,;as was not directed to have those two items credited on said judgment before satisfaction was entered, and also that 'the ofl'er of the defendants was made to compromise the judgment, which was for the full amount claimed by the United States, before any sums were found due to the contractor.' It is found that said jUdgment for $5,577.50 was recovered October 9, 1891, and that the two items referred to were allowed December 4, 1888 ($344.21), and August 21, 1889 ($434.02). Both these items, therefore, were found to be due to Biggert on transportation account before said judgment was obtained,-the first more than two years and the second nearly two years prior thereto,-and were retained in the treasury, awaiting the result of the suit to recover sairl $5,577.50. This was done in accordance with the reqUirement of the act of :.\larch 3, 1875 (18 Stat. 481), which prescribes that when 'a claim duly allowed by legal authority shall be presented to the secretary of the treasury for payment, and the claimant therein shall be indebted to the United States in any manner, it shall be the duty of the secretary to withhold payment of an amount of such claim equal to the debt thus due to the United States.' In this case it is obvious that if it had been known to the acting secretary, personally, that the two items in question were due to Biggert, the compromise of said judgment on payment of $1,000 and costs would not have been approved, as the law virtually prohibited the secretary from any such settlement of the case. It was therefore an elTor to make such a compromise, and as it is a well-known general principle of law that the government must not be made to sufl'er by the laches of its agents, you are requested to instruct the United States attorney in charge to make a motion for opening the order of the court i1ismissing the case for the purpose of having a new order entered, diI'ecting that the two items mentioned shall be credited on such judgment, in addition to the sum of $1,000.00 ofl'ered by way of compromise. "Uespectfully, yours, Charles Foster, Secretary." This communication having been refel"I'ed to the district attorney, with instl11ctions to proceed as therein directed, that officer on the 23d of November, 1892, filed in the district court a motion to set aside the entry of satisfaction
40
FEDER<\.L
vol. 7O.
of ju4gment,basing the motionou the of the secretary of the treasury, WAillA., It was agreed betwellD,. migbt be taken.·as .11 stateIDIlD,t ,oCthe facts of the case. and read as evidence on the hearing of the .. The district court refuse(1 to vacate the entry of satisfaction of the anl'l the United States tl;1ereupon sued out this writ. of error.
U. S. Atty., filed brief for the United States. J. R. Hallowell, Thomas C. Wilson, and Montgomery Hallowell filed lwief for defendant in error. SANBORN, 'and THAYER, Circuit Judges. CALDWELL, Circuit Judge, .after ,stating the case as above, delivered the opinion of· the court. A motion, upon due notice to the judgjIIlent defendants, to have the entry of the satisfactioilof the judgment canceled and set aside, was an appropriate mode of proceeding to obtain that relief. But clearly, upon the record. before ,us, the United States is not entitled to the relief sought by the motion. It is not averred or proved that the sums standing to the credit of Biggert, one onhe judgment defendants, on the treasury books, have any connection with or relation to the transaction out of which the cause of actidI'l arose against Biggert and Evans, and upon which the joint judgment against them was rendered. It is not shown that Riggert understood or agreed that the entrY ofthejoint judgment against himself and Evans in consideration of the $1,000 and costs, paid into the treasury by them, should operate as a satisfaction of his individual claims against the government, or that the compromise of the judgment against the two had any relation to Riggert's other and individual transactions and dealings with the government. The government has no occasion to seek relief in this mode. It has the money represented by the credits mentioned in favor of Biggert in its treasury, and can retain it"there. If Riggert should sue for these sums, the government can tben set up any defenses. to tbe action that it may have. The j udgment of the district court is affirmed.
WILLIAMS v. SHWNS et al. (Circuit Court of Appeals, Eighth Circuit. September 16, 1895.)
No. 514.
1.
PARTIES oro ACTIONS-INDEMNITY BOND.
The claimant of property attached by a sheriff as the property of an· other may sue In his own Iiame on a bond of indemnity given to the sheriff, either as the real party in interest or by virtue of the statute of Arkansas (Mansf. Dig. § 3024).
2.
.
fRAUDULENT CONVEYANCES-EvIDENCE.
In an action on an indemnity bond' given to a sherifr upon attaching. as property of one N., certain goods claimed by plaintiffs, it appeared that N., a retail merchant, owed plaintiffs, wholesale merchants, about $4,000; that he sold his stock of goods to them for $2,000, credited on this indebtedness; that in a circular notice sent by plaintiffs, iIi accordance with their cus0m, Iilhortly before this transaction, to the!rattorney, who also represented other. creditors of N., plaintiffs bad stated N.'s indebtedness as . $54.16, but that this included only the amount due on open account, and