Lammon v. Feusier, 111 U.S. 17

The marshal, in serving a writ of attachment on mesne process, which directs him to take the property of a particular person, acts officially. His official duty is to take the property of that person, and of that person only ; and to take only such property of his as is subject to be attached, and not property exempt by law from attachment. A neglect to take the attachable property of that person, and a taking, upon the writ, p. 19of the property of another person, or of property exempt from attachment, are equally breaches of his official duty. The taking of the attachable property of the person named in the writ is rightful; the taking of the property of another person is wrongful; but each, being done by the marshal in executing the writ in his hands, is an attempt to perform his official duty, and is an official act.

When a marshal, upon a writ of attachment on mesne process, takes property of a person not named in the writ, the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ issued. Freeman n . Howe, 24 How. 450; Krippendorf v. Hyde, 110 U. S. 276. The principle upon which those decisions are founded is, as declared by Mr. Justice Miller in Buck v. CoTbath, above cited, “ that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over p. 20the court whose process has first taken possession, or some superior jurisdiction in the premises.” 3 Wall. 341. Because the law had been so settled by this court, the plaintiff in this case failed to maintain replevin in the courts of the State of Nevada against the marshal, for the very taking which is the ground of the present action. Feusier v. Lammon, 6 Nevada, 209.

But in People v. Schuyler, 4 N. Y. 173, the judgment in 5 Barb. 166 was reversed, and the case Ex parte Reed, 4 Hill, 572, overruled by a majority of the New York Court of Appeals, with the concurrence of Chief Justice Bronson, who had taken part in deciding Reed's Case. The final decision in People v. Schuyler has been since treated by the Court of Appeals as settling the law upon this point. Mayor, &c., of New p. 21York v. Sibberns, 3 Abbott App. 266, and 7 Daly, 436 ; Cumming v. Brown, 43 N. Y. 514; People n . Lucas, 93 N. Y. 585. And the liability of the sureties in such cases has been affirmed by a great preponderance of authority, including decisions in the highest courts of Pennsylvania, Maine, Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Nebraska, Texas and California, and in the Supreme Court of the District of Columbia. Carmack v. Commonwealth, 5 Binn. 184; Brunott n . HcKee, 6 Watts & Serg. 513; Archer n . Noble, 3 Greenl. 418 ; Harris n . Hanson, 2 Fairf. 241; Greenfield v. Wilson, 13 Gray, 384; Tracy v. Goodwin, 5 Allen, 409 ; State v. Jennings, 4 Ohio St. 418; Sangster v. Commonwealth, 17 Grattan, 124; Commonwealth n . Stockton, 5 T. B. Monroe, 192; Jewell v. Hills, 3 Bush, 62; State v. Hoore, 19 Missouri, 366; State n . Fitzpatrick, 64 Missouri, 185; Charles v. Haskins, 11 Iowa, 329; Turner n . Killian, 12 Nebraska, 580; Holliman v. Carroll, 27 Texas, 23; Van Pelt v. Littler, 14 Cal. 194; United States n . LIine, 3 MacArthur, 27.

friction matches who furnished his own dies, was entitled to a commission of ten per cent, payable in money upon the amount of adhesive stamps over $500 which heat anyone time purchased for his own use from the Bureau of Internal Revenue. Swift Company v. United States, 105 U. S. 691, considered and affirmed. A payment made to a public officer in discharge of a fee or tax illegally exacted p. 23is not such a voluntary payment as will preclude the party from recovering it back.

This case was heard at October Term, 1881, on a demurrer to the petition. The judgment of the Court of Claims sustaining the demurrer was overruled, and the case remanded for a hearing on the merits, 105 U. S. 691. The Court of Claims found that the claimants from 1870 to 1878, were manufacturers of matches, furnished their own dies, and gave bonds for payment of stamps furnished within sixty days after delivery under the statute. Each order was for stamps of a stated value. The commissioner from the commencement held that the amount allowed by statute was to be computed as commissions upon the amount of money paid. All business between the parties was transacted and all accounts stated and adjusted by the accounting officers on that basis. The manner in which the parties did business under that ruling is stated below, in the opinion of the court. The Court of Claims held that the facts p. 24showed an acquiescence by the claimant in the construction of the statute by the commissioner, and such repeated settlements and voluntary acceptances of stamps in payment of their commissions in lieu of money, as to preclude them from recovering, and gave judgment in favor of the United States. From this judgment the corporation appealed. On the hearing in this court the argument was on the following points: 1st. Whether the former construction of the statute was correct; 2d. Whether the long acquiescence of the company in the construction given to the statute by the commissioner, and its frequent and regular settlement of its accounts on that basis and acceptance of stamps in lieu of money precluded it from disputing the legality of the transactions; and 3d. What was the effect of the failure to protest against the settlements which it made under the rulings of the commissioner.

It was then held that the right construction of the internal revenue acts, act of July 1st, 1862, c. 119, § 102, 12 Stat. 471; act of March 3d, 1863, c. 74, 12 Stat. 714; act of June 30th, 1864, c. 173, 13 Stat. 294, 302; act of July 14, 1870, c. 255, § 4, 16 Stat. 257, required the payment of the commission allowed to dealers in proprietary articles purchasing stamps made from their own dies and for their own use, to be made in money, calculated at the rate of ten per cent, upon the whole amount of stamps furnished, and not in stamps at their face value calculated upon the amount of money paid. In response to a suggestion in argument by the solicitor-general wo now repeat the conclusion then announced. We had no doubt upon the point at the time; we have none now. The distinction was then pointed out between the rule applicable to the sale of p. 25other adhesive stamps and those sold to proprietors of articles named in Schedule 0, made from their own dies. In the former, the commissioner of internal revenue had a discretion to fix the rate of commission so as not to exceed five per cent.', and in exercising that discretion could make the commission payable in stamps as an element in the rate itself. As to the latter, no such discretion was given. The statute fixed the rate of the commission absolutely. The practice of the bureau confused the two cases and ignored the distinction between them. We do not perceive how the substitution of the word “ commission” in the act of 1863 for the word “ discount ” in the proviso to § 102 of the act of 1862 affects the question; for the latter obviously refers to a sum to be deducted from the money paid for the stamps, and not from the stamps sold, while the former equally denotes a sum to be paid to the purchaser on a purchase of stamps at par, both being calculated as a percentage upon the amount of the purchase money, and the necessary implication as to both being that they are to be paid in money. However the words in some applications may differ in verbal meaning, they represent in the transactions contemplated by these statutes an identical thing.

On the former appeal we decided that the course of dealing set forth in the petition, which was admitted by the demurrer, did not bar the claimant’s right to recover; holding that it did not appear on the face of the petition that the appellant voluntarily accepted payment of his commissions in stamps at par, instead of money, nor that he was willing to waive his right to be paid in that way; and that “ it would be incumbent on the government, in order to deprive him of his statutory right, not only to show facts from which an agreement to do so,” that is p. 26an agreement to waive his statutory right, “ might be inferred, but an actual settlement based upon such an understanding.”

Each purchase was upon a separate written order, specifying the amount desired, for example, $3,000 dollars’ worth of match stamps. The commissioner thereupon forwarded stamps of the face value of $3,300, with a letter stating that they were in satisfaction of the order rexerred to, and inclosing a receipt on a blank form, but filled up, except date and signature, which was an acknowledgment of the receipt of the specified amount of stamps in satisfaction of the order. The receipt was signed by the claimant and returned. The claimant from time to time made remittances of money in authorized certificates of deposit, in sums to suit its convenience, for credit generally, and received in reply an acknowledgment stating that credit had accordingly been given on the books of the internal revenue office on account of adhesive stamps; for instance, by certificate of deposit, $2,500; commission at ten per cent., $250; total, $2,750; and authorizing the claimant to take credit therefor on p. 27the prescribed form for the monthly account current. These accounts were made out by the claimant monthly on blank forms prescribed and furnished by the commissioner, in which the United States were debited with all items of money remitted and with commissions calculated on each remittance at ten per cent., and credited with balance from previous month and stamps received on order in the interval, and with the balance due the United States. This account was by a memorandum at the foot stated to be correct, complete, and true, and signed by the claimant. These returns, with corresponding statements by the commissioner, were settled and adjusted by the accounting officers of the Treasury Department every quarter, and notice of the settlement given to the claimant. The remittances were so made that while not corresponding to any particular order for stamps, they nevertheless covered all stamps the orders for which had been given sixty days or more previously, so that the claimant was always indebted to the United States for all stamps received within the past sixty days, but not for any received more than sixty days previously.

It appears that prior to June 30th, 1866, the leading manufacturers of matches, among whom was William H. Swift, who, upon the organization of the claimant corporation in 1870, became one of its large stockholders and treasurer, made repeated protests to the officers of the Internal Revenue Bureau against its method of computing commissions for proprietary stamps sold to those who furnished their own dies and designs; although it did not appear that any one in behalf of the claimant corporation ever, after its organization, made any such p. 28protest or objection, or any claim on account thereof, until January 8th, 1879. On that date, the appellant caused a letter to be written to the commissioner asserting its claim for the amount, afterwards sued for, as due on account of commissions on stamps purchased. To this, on January 16th, 1879, the commissioner replied, saying that the appellant had received all commissions upon stamps to which it was entitled, “ provided the method of computing commissions, which was inaugurated with the first issue of private-die proprietary stamps and has been continued by each of my predecessors, is correct. I have heretofore decided to adhere to the long-established practice of the office in this regard until there shall be some legislation or a judicial decision to change it.” And the claim was therefore rejected.

We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no p. 29choice. The only alternative was to submit to an illegal exaction, or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, volenti non fit injuria.

In Close v. Phipps, 7 M. & Gr. 586, which was a case of money paid in excess of what was due in order to prevent a threatened sale of mortgaged property, Tindal, G. J., said: “ The interest of the plaintiff to prevent the sale, by submitting to the demand, was so great, that it may well be said the payment was made under what the law calls a species of duress.” And in Parker v. Great Western Railway Company, 7 M. & Gr. 253, the wholesome principle was recognized that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Illegal interest, paid as a condition to redeem a pawn, was held in Astley n . Reynolds, 2 Stra. 915, to be a payment by compulsion. This case was followed, after a satisfactory review of the authorities, in Tutt v. Ide, 3 Blatchf. 249; and in Ogden v. Maxwell, 3 Blatchf. 319, it was held that illegal fees exacted by a collector, though sanctioned by a long-continued usage and practice in the office, under a mistaken construction of the statute, even when paid without protest, might be recovered back, on the ground that the payment was compulsory and not voluntary. And in Maxwell n . Griswold, 10 How. 242-256, it was said by this court: “ Now it can hardly be meant, in this class of cases, that to make a payment involuntary, it should be by actual violence or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property, except by submitting to the payment.” To the same effect are the American Steamship Company Young, 89 Penn. St. 186; CunninghamN. Monroe, 15 Gray, 471; Carew v. Rutherford, 106 Mass. 1; Preston v. Boston, 12 Pick. 7. In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: “ To make the payment a voluntary one, the parties p. 30should stand upon an equal footing.” If a person illegally claims a fee colore officii, the payment is not voluntary so as to preclude the party from recovering it back, Morgan v. Palmer, 2 B. & C 729. In Steele v. Williams, 8 Exch. 625, Martin, B., said: “ If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment cannot be said to be voluntary.” “ The common principle,” says Mr. Pollock, Principles of Contract, 523, “ is, that if a man chooses to give away his money, or to take his chances whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice.” Addison on Contracts, *1043; Alton n . Durant, 2 Strobh. 257.

such an unprotected situation : I cannot consent to it”—and a written reply from the maker, saying, “We think you will run no risk in that p. 32time, as the property would be worth more than the amount due you if the building were to bum down,” is an acknowledgment of the debt within the requirements of the Mississippi statute of limitations.

sai Barnes in the Circuit Court of Harrison County, and there-ore declined to make further payment, or for further insurvou cxi—8 p. 34ance, stating that they desired to have the insurance changed, and to take it at a future time.

The answer, among other defences, set up usury and the p. 35statute of limitations, and denied that the correspondence took the notes out of the statute.

ayer & Co., in their partnership name, while the note is made y the individual members; but it is a legitimate inference, rom the facts found, that the firm was the common agent of p. 36all its members for the purpose, as the business of managing the property was transacted by the firm. It was indeed for the purpose of owning and conducting the hotel that the partnership was formed, and the note, though in form that of the individual partners, was regarded as a partnership obligation.

It is not claimed that there is any express provision in the Louisiana statute that requires such an application of payments made on account of unlawful interest. It is rested altogether upon the provision that forfeits the whole interest paid, and authorizes the debtor to recover it back within the time limited. But the same provision is contained in sec. 5198 Rev. Stats, of the United States, in reference to national banks; under which p. 37it has been held that usurious interest actually paid cannot be applied to the discharge of the principal. Driesbach v. National Bank, 104 IT. S. 52; Barnet n . National Bank, 98 U. S. 555. In Cook v. Lillo, 103 U. S. 792, the Louisiana statute was considered, and, upon the decisions of the Supreme Court of the State, it was decided that the usurious interest cannot be reclaimed, nor be imputed to the principal, unless a suit for its recovery is begun or plea of usury set up to the claim within twelve months after the payment is made. Cox v. McIntyre, 6 La. Ann. 470 ; Weaver n . Maillot, 15 La. Ann. 395.

We have disposed of the case upon both appeals. The motion to dismiss the cross-appeal of the defendants below, for p. 38want of jurisdiction, on the ground that the amount in controversy is less than $5,000, is overruled. The cross-appeal, it is true, is from a decree awarding against the defendants below less than that amount, and it could not, therefore, be maintained by itself; but the appeal of the plaintiffs below, to which it is incident, opened the whole controversy here, so far as they were concerned, and that of the defendants must be allowed to have the like effect as to them, so that upon both appeals the case was brought up as it stood for hearing in the court below, the claims of the respective parties involving the question of liability as to the whole amount.