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Ex parte Bradstreet. 6 P.

possession, and make the possession, as well as the confirmation of the commissioners, enure to his benefit. But this view of the case cannot be sustained, and the judgment of the court below must be affirmed.

12 P. 410; 8 H. 317.

Ex parte MARTHA BRADSTREET, in the Matter of MARTHA BRADSTREET, Demandant, v. APOLLOS COOPER et al., Tenants.1

6 P. 774.

Rule to show cause why a mandamus should not issue was granted, where it was sworn that the judge had neglected or refused to enter a judgment.

MR. JONES, of counsel for the demandant in the above-named cases, moved for a rule on the judge of the district court of the United States for the northern district of New York, to

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show cause why a mandamus should not be awarded commanding him,

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1. To reinstate, and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises thereon joined, lately pending in said court, and said to have

1 Philadelphia, 21st July, 1832.

Sir: In the case Ex parte Bradstreet v. Cooper et al., on the motion by Mr. Jones for a mandamus to the district court of the northern district of New York, I dissented from the order of the court in the following respects.

1. In ordering the suits to be reinstated.

2. Requiring the court to permit amendments to be made.

The ground of my dissent was, that a mandamus was not a proper remedy, that the dismission of a suit for want of jurisdiction was a final judgment, on which a writ of error could be brought; but that the supreme court had no power to issue a mandamus in such a case, the judgment being strictly a judicial act; and that, though an appellate court could direct amendments, it could only do so when a case was before them by writ of error or appeal.

It was stated in the affidavit that the court had actually rendered a judgment of dismission for the want of jurisdiction, but that there was no entry of it on the record, and that the judge had neglected or refused an application to direct it to be done. I had no doubt that this was a proper case for a rule to show cause why a mandamus should not issue directing the entry of such judgment as had been rendered by the court, so as to give the plaintiff the benefit of a writ of error. My opinion was confined to this subject-matter.

The order of the court, of which you inclosed me a copy in your note of to-day, which is herewith returned, was not shown to me at the time it was made; and until to-day I was not aware of its extent on the last point, embracing matters not taken into consideration by me. Yours, &c.,

RICHARD PETERS, Esquire, Reporter of Supreme Court.

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HENRY BALDWIN.

Ex parte Bradstreet. 6 P.

been dismissed by order of said court, between Martha Bradstreet, demandant, and Apollos Cooper et al., tenants.

2. Requiring said court to admit such amendments in the form of pleading, or such evidence as may be necessary to aver or to ascertain the jurisdiction of said court in the several suits aforesaid.

3. Or if sufficient cause should be shown by the said judge on the return of this rule, or should otherwise appear to this court, against a writ of mandamus requiring the matters and things aforesaid to be done by the said judge, then to show cause why a writ of mandamus should not issue from this court, requiring the said judge to direct and cause full records of the judgments or orders of dismission in the several suits aforesaid, and of the processes of the same to be duly made up and filed, so as to enable this court to reëxamine and decide the grounds and merits of such judgments or orders upon writs of error, such records showing upon the face of each what judgments or final orders dismissing, or otherwise definitively disposing of said suits, were rendered by the said district court, at whose instance, upon what grounds, and what exceptions or objec tions were reserved or taken by said demandant, or on her behalf, to the judgments or decisions of the said district court in the premises, or to the motions whereon such judgments or decisions were found; and what motion or motions, application or applications, were made to said court by the demandant, or on her behalf; and either granted or overruled by said district court, both before and after said judgments or decisions dismissing or otherwise finally disposing of said suits; especially what motions or applications were made by said demandant, or on her behalf, to said district court, to be admitted to amend her counts in the said suits, or to produce evidence [ *776] * to establish the value of the lands, &c., demanded in such counts, together with all the papers filed and proceedings had in said suits respectively.

On consideration whereof, it is now here considered and ordered by this court, that the rule prayed for be and the same is hereby granted, returnable to the 1st day of the next January term of this court, to wit, on the 2d Monday of Januarv, in the year of our Lord 1833. Per MARSHALL, C. J.

7 P. 634; 14 P. 614.

Boyce v. Grundy. 6 P.

THE UNITED STATES, Plaintiff, v. ZALEGMAN PHILLIPS.

6 P. 776.

A nol. pros. having been entered in the circuit court, this writ of error thereto was dismissed on motion of the attorney-general.

BOYCE et al. v. Felix Grundy.

6 P. 777.

WHERE the record showed that no appeal bond was taken, the appeal was dismissed, on motion.

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THE UNITED STATES, Plaintiffs in Error, v. GEORGE MACDANIEL.

7 P. 1.

The courts may allow to a clerk in a department, by way of offset, an equitable claim, for services rendered to the government under .the orders of the head of the department, though there be no act of congress providing for the case, and an auditor of the treasury 'could not allow the claim. (5 Stats. at Large, 349, § 3; 510, § 2.)

THE case is stated in the opinion of the court.

Taney, (attorney-general,) for the United States.

Coxe and Jones, contrà.

'Mr. JUSTICE BALDWIN was prevented attending the court by indisposition.

United States v. Macdaniel. 7 P.

M'LEAN, J., delivered the opinion of the court.

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A writ of error is prosecuted in this case by the United States, to reverse a judgment of the circuit court for the District of Columbia.

The action was brought by the government to recover from the defendant a balance charged against him on the books of the treasury department, amounting to the sum of $988.94.

In his defence, the defendant proved that he was a clerk in the navy department, upon an annual salary of $1,400; and that he also acted as the agent for the payment of the moneys due to the navy pensioners, the privateer pensioners, and for the navy dis

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bursements. That the moneys applied to the use of these [11] objects were placed in his hands by the government. That

he received the annual sum of $250 for his services in the payment of pensioners; but that for ten or fifteen years he received one per cent. on moneys paid by him for navy disbursements.

That these disbursements amounted to from the sum of fifty, to a hundred thousand dollars a year, and that no security was required from him. He claimed the usual allowance of one per cent. upon certain sums of money, disbursed by him, which had been rejected by the treasury officers, but which, if allowed, would show that he was not indebted to the government.

Upon this state of facts, the attorney for the United States prayed the court to instruct the jury that if they should believe the same to be true, that still the defendant had no right by law to the commissions which he claims, as the sum charged had never been allowed to him by any department of the government; and that it was not in the power of the jury to allow the commissions on the trial. But, the court refused to give the instructions, and a bill of exceptions was taken.

Two questions are made by the bill of exceptions, for the decision of this court.

1. Whether the defendant has a right to compensation for the services charged.

2. Whether, if such right existed, it should have been allowed on the trial, as the proper department had decided against it.

As to the second ground, it may be proper to remark, that the rejection of the claim of the defendant by the treasury department, formed no objection to the admission of it by the court, as evidence of offset to the jury, Had the claim never been presented to the department for allowance, it would not have been admitted as evidence by the court. But, as it had been made out in form, and presented to the proper accounting officer, and was rejected, the circuit court did

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