United States v. Nourse

The agent of the treasury of the United States, under the provisions of the. act of congress passed on the 15th of May 1820, entitled “ an act for the better organization of the treasury department,” issued a warrant to the marshal of the . district of Columbia, under which the goods and chattels, lands and tenements of J oseph Nourse, late register of the treasury of the United States, were attached for.the sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, alleged to be due to the United States upon a settlement of his accounts at the treasury of the United States. Mr Nourse, under the authority of the fourth section of that act, applied to the district judge Of the district of Columbia, for an injunction to stayiproceedings under the warrant, and alleging that a balance was due. to him by the United States, as commissions for the expenditure of large sums of money for the United States, and as a compensation for other duties than those of register of the treasury, in the disbursement of the said sums of money, to which commissions and compensation he claimed to be entitled, according, as he alleged, to the established practice, and by the application to his claims of the same rules which had been applied to other and similar cases in the adjustment-of accounts at the treasury department. The district judge granted an injunction to stay proceedings under the warrant; and the United States having filed an answer to the bill of Mr Nourse, auditors were 'appointed by the district judge to audit and settle the accounts of Mr Nourse with the United States. .The auditors reported the sum of twenty-three thou- ' sand five hundred and eighty-two dollars and seventy-two cents due to Mr Nourse by the United Stales, for extra services rendered to the United States in receiving and disbursing public money. Allowing credit in the audit of the accounts of the sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents; claimed by the United States, a balance of eleven thousand, eight hundred and thirteen dollars and fifty-nine cents would be due1 to- Mr Nourse. The district judge made a decree that the injunction should be perpetual. The United States appealed to the circuit court; .and the decree for'a perpetual injunction was affirmed in that court. The United States appealed to the supreme court; and on a motion by the appellee to dismiss the appeal for want of jurisdiction, it was held that no appeal is given by the act of congress from a decree of the district judge to the circuit court. The special jurisdiction created by the act of congress must be strictly exercised within its provisions; A particular mode is ■ pointed out by which an appeal from the decision of the district judge may be taken by the person against whom proceedings have issued; consequently, it can be taken in no other way. No provision is ¡nade for an appeal by the government; of course none was intended to be given,to it. It appears that no provision is made in the general act organizing the courts of the United States to authorise an appeal from the judgment or decree of the district court to the circuit court; except in cases of admiralty and maritime jurisdiction: tin the principle of the case of the United States v. Goodwin, the appeal in this case cannot-fee maintained. If it be a case in chancery,no provision is made in the general law to appeal such a case from the district to the circuit colirt.

APPEAL from the circuit court of the United States for the county of Washington, in the district of Columbia. Mr Coxe, for the complainant, moved to dismiss this appeal for wánt of jurisdiction. The circumstances and proceedings in this case, as exhibited in the record, were the following: •Joseph Nourse was removed from the office of register of the treasury of the United States in 1829. The following comm,unication was afterwards addressed to him from the treasury department. Treasury Department, Comptroller’? Office, 26th June 1829; Sir — Upon a statement of a general account, comprehending the different agencies under which you acted as late register of the treasury, the following balances were found to be due on them, respectively, to the United .States, to wit: As agent for the joint library committee of congress, - @2,502 55 Ditto for paying the expenses of stating and printing the public accounts, - - - 934 98 Ditto for paying the. superintendent and watchmen of the buildings occupied by the state and treasury departments,- - 1,325 41 Ditto for paying the expenses of printing certificates of the public debt, • - - - 1,011 29 Ditto for paying the contingent expenses of the treasury department, - 5,994 90' Amounting, in the whole, to $11,769 13 ■ In the general account rendered by you, a balance of nine thousand three hundred and sixty-seven dollars and eighty-seven cents is claimed; between which and the balance above stated,- there is a difference of twenty-one thousand one hundred and thirty-seven dollars; and is occasioned, with the exception of fifty-four dollars and fifty cents paid to 'Gabriel Nourse and James Watson, suspended foi want of vouchers, by your having charged a commission of two and a half per cent on all the moneys which have passed through your hands, under the different agencies above specified, but which the accounting officers of the treasury could not allow; there being no law to authorise or sanction such a charge. A copy of the treasury settlement of your account is inclosed for your information. It becomes my duty to request that you will deposit the abovementioned balance of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, in the office of discount and deposit of the branch bank of the United States at Washington city, to the credit of the treasury of the United States, taking duplicate receipts therefor from the cashier, one' of which you will forward to this department. Respectfully, Jos. Anderson, Comptroller. Jos. Nourse, Esq., late Register of the Treasury. The request contained in this letter not having been complied with, on the 14th of July 1829, the following process was issued by order of the agent of the treasury. To Tench Ringgold, Esquire, Marshal of the District of Columbia. Whereas Joseph Nourse, late register of the treasury, in relation to his several accounts as United States agent, stands ■ indebted to the United States in a cash balance of eleven thousand seven and sixty-nine dollars and thirteen cents; agreeably to the settlement of his account-, made by the proper accounting officers of the treasury, a copy of which is herewith inclosed; and vrhereas the said Joseph Nourse, having failed to pay over according to the act of congress, passed the 15th day of May 1820, entitled <c an act for the better organization of the treasury department,” the said sum of eleven thousand seven hundred and sixty-nine dollars and.thirteen cents, these are, therefore, in pursuance of the said act, to command you to proceed immediately to levy and collect the said sum of eleven .thousand seven hundred and sixty-nine dollars and thirteen cents, by distress and sale of the goods and chattels of the said Joseph Nourse, giving ten days previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town or county where .the said'goods or chattels were taken, or in the town or county where the owner of such goods or chattels may. reside; and should there not be found sufficient goods and chattels to satisfy the said sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, remaining due and unpaid as aforesaid, you are hereby commanded to commit the body of' the said Joseph Nourse to prison, there to remain until discharged by due course of law: and should the said Joseph Nourse be committed to prison, as aforesaid, or. if he abscond, and goods and chattels sufficient to satisfy the said sum of eleven ihousand seven hundred and sixty-nine dollars and thirteen cents, be not found, you are hereby commanded to levy upon, and expose to sale, at public auction, for ready money, to the highest bidder, the lands, tenements and hereditaments of the said Joseph Nourse, or so much thereof as may be necessary to satisfy the said sum of eleven thousand seven hundred' and sixty-nine dollars and thirteen cents, or whatever sum there may remain due and unpaid thereof, after you shall have given notice pf the said sale, at least three weeks prior to its taking place, in not less than three public places in the county of district where such real estate is situate; and all moneys which may remain of the proceeds of such sale, after satisfying the said sum of eleven thousand seven hundred and si,xty-nine dollarsand thirteen cents, and paying the reasonable costs and charges of the sale, you are required to return to thé proprietor or proprietors of the land or real estate sold as aforesaid: and whatever you may do in obedience to this warrant, make return thereof to this office; and for so doing this shall be your sufficient authority.. Given under my hand and seal, at my office, in the department of the treasury of the United States, at the city of Washington, in the district of Columbia, this fourteenth day of July, in the year of our Lord one thousand eight hundred and twenty-nine. S. Px,easonton [seal]. Agent of the Treasury. This warrant was issued- under the second section of the act of congress passed May 15, 1820, 3 Story’s Laws U. S. 1791, entitled “ ail act providing for the better organization of the treasury department. ” The third section .provides “ that if any officer employed, or whp has been heretofore employed in the civil, military or naval departments of the government, to disburse the public, money appropriated for the service of those departments respectively, shall fail to render his accounts, or to pay over in the manner and in the times required by law, or the regulations of the department to which he is accountable, any sum Of money remaining in the hands of such officer, it shall be the duty of the first or second comptroller of the treasury,. as the case may be, who shall be charged with the revision of the accounts of such officer, to cause to be stated and certified, the account of such delinquent officer to the agent of the treasury, who is hereby authorised and required, immediately, to proceed against the delinquent officer in the manner directed in the preceding sections, all the provisions of which are hereby declared to be applicable to every officer of the government charged with the disbursement of public money, and to their sureties, in the same manner and to the same extent as if they had been described and enumerated in the said section. ” The second section of the act directs the warrant to issue to the marshal of the district where the delinquent resides; and that the marshal shall proceed to levy the sum due, by distress and sale of the goods and chattels of such delinquent, and if. there be not sufficient goods and chattels to satisfy the warrant, the marshal is authorised to take the person of the delinquent, and to commit him to prison, there to remain until discharged by due course of law, &c. The fourth section provides, that if any person shall consider himself aggrieved by any warrant issued under the act, he may prefer a bill of complaint to any district judge of the United States, setting forth the nature and extent of the injury of which he complains; and thereupon the judge aforesaid may, if in his opinion the case requires it, grant an injunction to stay proceedings on such warrant altogether, .or for so much thereof as the nature of the case requires; but no injunction shall issue until the party applying shall give bond and sufficient security, conditioned for the performance of such judgment as shall’be awarded against the complainant, in such amount as the judge granting the injunction shall prescribe: nor shall the issuing of said injunction in any manner impair the lien produced by the issuing of such1 warrant. And the sáme proceeding shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if upon dissolving the injunction, it shall appear to .the satisfaction of the judge who shall decide upon the same, that the application for thednjunction was merely for delay, “ the judge may add damages, not to exceed ten per centum on the principal sum.” The fifth section provides, that such injunctions may be granted in or out of court; and the sixth section enacts, “that if any person shall consider himself aggrieved by the decision of such judge, either in refusing to issue the injunction, or if granted, on its dissolution, it shall be competent for such person to lay a copy of the proceeding had, before the district judge of the supreme court, to whom authority is hereby given, .either to grant the injunction or permit an appeal, as the case may be, if in the opinion .of such judge of the supreme court the equity of the case requires it; and thereupon the same proceedings shall'be had upon such injunction in the circuit court as are prescribed in the district court, and subject to the same conditions in all respects.” The marshal of the district of Columbia having levied the warrant on the lands and tenements, goods and chattels of Mr Nourse; on the 25th of August 1829, he presented to the district judge of the United States for the said district, the following bill for relief. To William Cranch, Esq., chief justice of the District of Columbia, and judge of the district court of the United States for said district: This the bill of complaint of Joseph Nourse, late register of . the treasury of the United States, shows that his public accounts as such register, and agent of the treasury department in disbursing certain funds, and settling certain accounts of. contingencies and other miscellaneous matters, and as agent for the joint library committees of congress, matters altogether distinct from, and unconnected with, his duties as such register, have been settled at the treasury since his removal from office; upon which settlement, a pretended balance has been found against him for the sum of eleven thousand two hundred and fifty dollars and twenty-six cents; for which a warrant of distréss has been issued against his lands and tenements, goods ■and chattels, by Stephen Pleasonton, Esq., agent of the treasury, in the pretended execution of the act of congress, passed on the 15th day of May 1820, “providing for the better organization of the treasury department,” which warrant has been levied, during the absence of this complainant, on his lands, tenements, goods and chattels, by the marshal of this district; copy of which is annexed. That the said account is unjust and illegal; and so far from any balance being due thereon to the United States, a considerable balance should have been struck thereon in favour of this complainant, as appears by an account hereto annexed, which he declares is just and true. That, besides his regular duties, as register, established by law, and stated according to the custom and routine of his office as such register, he was, for a long course of years, that is to say, from the year 1790 till his recent dismission from office, dqly employed by the proper department of the government of the United States, in the separate, independent, and wholly extra business of special agent for the disbursement of the contingent funds of the treasury department, and for the Settlement, as such special agent, of all the numerous accounts connected with the disbursement of those funds. . That this distinct branch of duty, which he took upon himself, at jthe special instance and request of the proper department of the government, and "having competent authority to engage 'him or any other agent in that capacity, and for the performance of those duties, devolved upon him great labour, responsibility, and risk, altogether independent of, and apart from, his proper duties as register, and occupied a great" portion of his private hours, that is, of those hours, when, according to. the established order and routine of his department, he was altogether .discharged and free from the proper duties appertaining to his office of register, and had his time entirely at his own disposal; but for his employment as special agent as aforesaid. That the extent of the extra labour and responsibility so devolved upon him cannot be adequately described or conceived, without a" reference to, and inspection of, his books, bank accounts, and vouchers connected with this branch of his employment in the public service; and he there-, fore prays that these documents may be ordered to be produced from the treasury department, and audited in this court: that, besides the great labour and consumption of time induced by this extra employment, he was exposed to considerable pecuniary losses, from the ordinary errors that occasionally occur in the accounts of the best accountants, fro'm the multiplicity and minuteness of the various accounts and vouchers to be settled and preserved: that when he undertook this branch of public employment, the precise nature and amount of compensation therefor were not ascertained by any particular stipulation: that, if the government had employed, any indifferent person to perform these duties, without any other precise compensation stipulated beforehand, a reasonable mercantile commission or per centage on the sums disbursed would have resulted to such person, according as well to general usage as to the custom of the treasury department in the like cases. That the usage of the treasury department, and other departments of the government, has invariably been, since the organization of the general government, to allow such commissions or per centage, not only to unofficial persons so employed, but to official persons and clerks of the departments, when such duties were distinct from the stated duties appertaining to their offices and stations, notwithstanding such official persons were in the receipt of fixed salaries for their stated duties. That, as early as the year 1800, this complainant made out an abstract of his disbursements under these extra agencies, claiming to be allowed a compensation therefor; which original abstract is on file in the treasury department; from whence he prays that it may be produced and audited in this court. That he has duly made out and presented his account to the proper accounting officers of the treasury, charging his commission at the rate of two and one half per cent on the amount of his disbursements, which, if allowed, would, after a full and fair settlement of all his public accounts, leave the United States indebted to him in a balance of nine thousand eight hundred and eighty-six dollars and twenty-four cents; which he has good reason to believe, and does verily think and believe, to be justly and equitably due and owing to him from the United States; as stated in his said annexed account. That the accounting officers of the treasury have altogether rejected and thrown out his said charge, and denied him any manner of compensation for his extra services as such special agent as aforesaid, not upon the ground or pretencé that his charge of commission is too high or unreasonable, if he were entitled to any compensation; but that he is not entitled to any compensation whatever for his extra services as such special agent, and pretending that his stated salary as register shall be received as full compensation, not only for his proper duties as register, but for his extra employment and sgryices in the agencies above mentioned. . That the. commissions or per centage so charged by the complainant are not only reasonable and usual in the like cases, but are an inadequate compensation for th,e peculiar labour and responsibility of the complainant in the discharge of the particular employment and' duties for which they are charged:. And this complainant further shows, that he is well advised' by counsel, and believes, that the act of congress under which the said warrant of distress is pretended to have been .issued, being a law in derogation of common right, and of ihe ordinary and approved remedies under the general law of the land, ought to be construed, with the utmost strictness against any authority assumed under it, and in .favour of the citizen; but, that in no reasonable construction of the same, can- this complainant or his accounts, either as register of the treasury, or as the special agent of the treasury, or as the agent of the joint library committees of congress, above described-, be brought within th¡e description of persons over whom that act gives jurisdiction to the agent of the treasury: By the second and third sections of the said act, the officérs subjected to the summary jurisdiction' and process of such treasury agent áre distributed into two classes: 1st, those employed to collect and'receive-the public money before it is paid into the treasury; 2dly, those employed to disburse the public mo.ney after it is paid into the treasury, appropriated for the service of the civil, naval, or military departments.There can be no pretence whatever, and he presumes none ife set up, to bring this complainant within the first class;, and, therefore, the ■ only question is, whether he falls within the second. This class he is well advised and believes was intended to comprehend none but the regularly appointed officers of the government, charged, fex officio, with disbursements for any of the three great departments named in the act. That this description cannot embrace mere subordinate agents employed by any particular department of the government, as by the treasury,, to disburse the contingent funds of the department, such agent 'not being an officer who is, ex officio, to disburse the public money appropriated for the service of either of the three great departments named; but, in the strictest sense, a mere unofficial agent, employed informally, ’without any letter patent, or commission or letter of appointment, to perform extra services for the treasury as a commission merchant or banker, to make purchases or accept bills on public account, might be employed, without attaching l’o such commission merchant or banker the character of functions of a public officer. Whereas the third section of the act throughout describes the party subjected to the summary process authorised by it, as “any officer employed,” &c.; “such delinquent officer,” &c.: and as to his office of register of the treasury, which constituted the only official relation between him and the government of the United States, it was not an office, the duties or employment of which consisted in the disbursement of any public money appropriated for the services of any of the three great departments of service named in the third section of the act of congress. Nor did this complainant, as such register, receive or disburse, nor was he competent, as such register, to receive or disburse, any of the public money charged to him in the skid pretended account so settled by the accounting officers of the treasury, and upon which the said warrant of distress was issued as aforesaid. Nevertheless, the said accounting officers of the treasury have unjustly and unlawfully charged him, in the settlement of his official account as register, with all the’moneys received by him for disbursement as such special agent as aforesaid; and the whole of the alleged delinquency is charged, to him officially as register, and under that'official head; and against him, officially as register, such warrant was issued. Whereas, his said account for the receipts and disbursements of public money was wholly unofficial, and connected with his official duties and station as register. The complainant therefore submits, that, whatever its merit, in the opinion of the court, of the essential dispute on matters of account between him and the accounting officers, the parties may be remitted to the ordinary process &f law, so as to have a fair trial and regular adjudication of the merits, before execution be had of his body or estate. Therefore, this complainant prays that injunction may be granted to him to stay proceedings on the said warrant altogether; and that he may have such further and other relief in the premises, as to this court shall seem meet, and agreeable to equity and good, conscience. Joseph Nourse. The district judge granted the injunction as prayed for, which was served Upon the agent of the treasury, and a citation was issued, directed to him, to appear and answer the bill of injunction at the next court, to be holden in Alexandria. The following answer was filed on behalf of the United States.- The answer of the United States of-America, to a bill of injunction filed against them in the district court of the United States for the district, of Potomac, by Joseph Nourse, late register of the treasury of the United States. The United States, by Thomas Swann, their attorney, answer .and say, that, upon -a settlement by the proper ofiicers of the government of the general account of the complainant, comprehending the different agencies under which'he acted as register of the treasury, he was found indebted to the United States in the sum of eleven thousand seven hundred and sixty-nine dollars and thirteen cents, as will appear by the account settled as aforesaid, a copy of which is exhibited by the complainant, in his bill of complaint, with the letter of Joseph Anderson, comptroller, and to which the United States refer, and request that they may be .considered as a part of this answer. . The United States, by their attorney aforesaid, state, that the said-complainant had rendered to the United States; his general account against, them, charging a commission of two and a half per cent upon all moneys which had.passed through', his hands in the different agencies in which he had acted as aforesaid, and claiming, by that account, a balance, as due to him from the United-States, of nine thousand three hundred 'and sixty-seven dollars and eighty-seven cents, as will appear by a copy of the said account, exhibited by the complainant, and made" a part also of his said bill of complaint. The United States, by their said attorney, state, that the grounds upon which the United States had claimed from the complainant the aforesaid balance of eleven thousand seven hundred and sixty-nine dollars and eighty-seven cents, are fully stated and disclosed by the aforesaid letter of the comptroller; and the differencé between-the account of the United States and that rendered by the complainant, with the exception of fifty-four dollars and fifty cents, as stated in the comptroller’s letter, arises from the charges of a commission, as hereinbefore stated, of two and a half per cent upon the public money which had passed through the hands of' the complainant as aforesaid. The United States, by their said attorney, deny that the complainant is entitled to the commission which he claims as aforesaid, and say that there is no law of the United States authorizing any such commission, or any commission whatever upon the public moneys which had passed through his hands as aforesaid; and they insist that the balance of eleven thousand seven hundred and sixty-nine dollars and thirteen cents is justly and fairly due from the complainant to the United States, and that the United States were authorised bylaw, and fully justified in resorting to the remedy by distress, to enforce the payment of the said balance: the United States, do therefore request that the injunction granted to the said complainant in this case may be dissolved, and that they may be permitted to pursue their legal remedies for the recovery of the said balance. Thomas Swann,. Att’y U. S. On the 20th of December 1830, the district judge having heard the counsel on behalf of the complainant, and of the United States, made an order and decree,i ‘ that the said Joseph Nourse has produced satisfactory evidence that he did, for a long course of years, render various services, and disburse large sums of money for the use of the United States, and, at their request, from time to time, made, through the respective secretaries of the treasury of the United States for the time being; which services and disbursements were performed and made by the said Joseph Nourse, over and above the services required by the duties of his office as register of the treasury of the United States, for which said extra services and disbursements he has never been allowed -any compensation in the settlement of his accounts at the treasury department: and, it being by the court deemed expedient to ascertain, by the report of auditors to be. appointed by the court for that purpose, thevalueof those services, and the compensation to which the said' Joseph Nourse is equitably entitled therefor, and for his disbursements as aforesaid, it is further ordered, that Robert J. Taylor, Phineas Janney, and Colin Auld, be, and they are hereby, appointed, auditors to ascertain the said value and compensatioh, and to report thereon to this court without delay* and that such of the papers and evidence in this cause as relate to that subject, be submitted to the said auditors for their better information thereon. The auditors, on the 31st December 1830, reported as follows: The subscribers, appointed auditors by the decree of the court in the above cause, made on the 20th day of this month (of which a copy is annexed), to value the services of the complainant, and the compensation to which he is equitably entitled for the same, and for disbursements of public money made .by him, at the request of the United States, through the respective secretaries of the treasury for the time being, over and above the services required by the duties of his office of register of the treasury of the United.States, respectfully report; that it appears from the documents and evidence submitted to them, that, from the 10th of April 1790 to the 31st of May 1829, thirty-nine years, one month, and twenty-one days, the complainant, as agent for the payment of contingent expenses of the treasury department, for'stationary, and printing of public accounts, for payment of the superintendent and watchman of the state and treasury departments, for miscellaneous disbursements, comprising fifteen different agencies, for advances.made to sundry persons who brought, from the several states the votes for presidents and vice presidents of the United States, and on account of the congressional library, disbursed the sum of nine hundred and forty-three thousand three hundred and eight dollars and eighty-three cents; the services rendered in which said agencies, and in making said disbursements,, were over and above the services required of him by the duties of his office as register of the treasury of the. United States:1 we find, that, for similar services, where no special provision had been made by law, a commission of two and a half per cent has been heretofore, in many cases, allowed at the treasury of the United States; and we are of opinion, that a commission of two aqd a half per Cent on the said sum of nine hundred and forty thousand and three hundred arid eight dollars and eighty-three cents, amounting to the sum ,of twenty-three thousand, five hundred and eighty-two dollars and seventy-two cents, is an equitable compensation for the services so as aforesaid rendered to the United States by the-said Joseph Nourse; arid that the said services are equitably worth the said last mentioned sum, .. All which is respectfully submitted. R. J. Taylor, Phineas Janney, Colin Auld. Alexandria, Dec. 31,1830. ■ Whereupon the following decree was made by the district judge, on the 4th day of January 1831. And at a court continued and held for the said district, the 4th day of January 1831, the auditors, Robert J. Taylor, Phlneas Janney, and Colin Auld, to whom, by an interlocutory order of this court, bearing-date December 20th, 1831, it was referred to ascertain the value of the services rendered by the complainant to the defendant, over and above the regular official duties attached to his office of register of the treasury of the United States, as set forth in said interlocutory -order as aforesaid, having made and returned .their report to the court, bearing date the 31st day of December 1830, iri and by which the said auditors state, among other things, that a commission of two and a half per cent upon the sum of nine hundred and forty-three thousand three hundred and eight dollars and eighty-three cents, amounting to the sum of twenty-three thousand five hundred and eighty-two dollars and seventy-two cents, is an equitable compensation for the services so as aforesaid rendered to the United States by the said Joseph Nourse; and that the said services are equitably worth the said last mentioned sum, and no sufficient reasons having been presented to the court against the confirmation of said report of said auditors, it is thereupon, this 4th day pf January 1831; ordered, adjudged, and decreed, that the said report be, and the same is hereby, in all particulars, confirmed and made absolute. And the said cause now also criming on for final decision upon said report, and the bill, answer, replication, exhibits, depositions, and other evidence admitted by the parties, and upon the equity reserved under and by the said interlocutory order, it is further ordered, decreed and adjudged, that the injunction heretofore granted in this cause be, and the same is hereby perpetuated; and that the said defendants be, and they are hereby, perpetually enjoined from proceeding further against the said complainant upon the warrant of distress in the bill mentioned, for or on account of a claim or demand, for the recovery of which the said warrant of distress issued. The United States appealed to the circuit court, in which court a motion was made to discuss the appeal, which was overruled. The circuit court affirmed the decree of'the district judge, and the United States prosecuted this appeal.