(112 U. S. 88)

vanced his money upon the security thereof, in good faith, and in ignorance that the note had been altered. If the wife had herself signed the note, she would have been an accommodation maker, and, in equity, at least, a surety for the other signers; and neither the liability of the husband as maker of the note, nor the effect of the mortgage executed by the wife, as well as by the husband, to secure the payment of that note, would have been materially altered by the addition of her signature. There appears to us, therefore, to be no reason why the plaintiff, as indorsee of the note, seeking no decree against the wife personally, should not enforce the note against the husband, and the mortgage against the land of the wife. This suit being between citizens of different states, and founded on a negotiable promissory note, the indorsement of which to the plaintiff carried with it as an incident, in equity, the mortgage made to secure its payment, was within the jurisdiction of the circuit court, under the act of March 3, 1875, c. 137, although Krueger, the payee and mortgagee, could not have maintained a suit in that court. 18 St. 470; Sheldon v. Sill, 8 How. 441, 450; Tredway v. Sanger, 107 U. S. 323; S. C. 2 SUP. CT. REP. 691.

Decree reversed.

UNITED STATES v. FLANDERS and others.

(November 3, 1884.)

1. INTERNAL REVENUE-COMPENSATION OF COLLECTOR.

A person appointed and commissioned as a collector of internal revenue, under the act of July 1, 1862, (12 St. 432,) is entitled to the compensation, provided for by section 34 of that act, of a percentage commission to be computed on the moneys accounted for and paid over by him, from the time he enters on the duties of his office and his services are accepted, and not merely from the time he takes the oath of office and files his official bond.

2. SAME

SUIT ON BOND-SET-OFF.

A collector of internal revenue appointed under that act is entitled, in a suit against him on such bond, brought to recover public money collected by him and not paid over, to have allowed, as a set-off, money paid by him for publishing advertisements required to be made by section 19 of that act, if the amount is found to be reasonable and proper, although the item was not formally allowed or certified by the accounting officers in the treasury department, or otherwise.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

Asst. Atty. Gen. Maury, for plaintiff in error. J. Q. A. Fellows, for de fendant in error.

*BLATCHFORD, J. This is a suit brought by the United States, in the circuit court of the United States for the Eastern district of Louisiana, against George S. Denison, and the sureties on his bond, as collector of internal revenue for the first collection district of Louisiana, to recover $4,346.84 as public money which he collected and did not pay over. Three of the sureties defended the suit, and on a trial before a jury there was a verdict in their favor, and a judgment accordingly. The United States have sued out a writ of error. The answer sets up that Denison or his estate is entitled to further credits than those allowed to him, which claims for credits he presented to the accounting officers of the treasury, but they disallowed them, to the amount of $4,199.74 on account of his compensation as collector, and to the amount of $777 on account of money paid by him for necessary and legal advertising. The bill of exceptions sets forth that there was evidence tending to show that Denison was appointed collector by a commission dated March 4, 1863; that he took the oath of office, and executed his bond as such collector on the fifteenth of May, 1863, and remained in office until the eleventh of December, 1863; that his accounts were adjusted by the accounting officers of the treasury at various dates subsequent to June 3, 1864, but in these ad

06.

justments he had not concurred, and the proper notice had been given to lay the foundation for the introduction of evidence as to the additional credits claimed; that he entered upon the discharge of his official duty as collector on the eleventh of March, 1863, and continued so to act until December 11, 1863; and that his accounts were regularly transmitted monthly during his whole term of office, and at the end thereof, and all prior to June 30, 1864. The counsel for the plaintiffs asked the court to instruct the jury that Denison was not entitled to any compensation as collector prior to May 15, 1863, the date on which he gave the bond and took the oath of office. The court refused to give that instruction, but instead thereof gave the following: That the government could have properly refused to allow Denison to assume the office of collector until he had taken the oath of office and given the requisite bond; that for certain purposes he could not be an officer until he had taken the oath and given the bond; but if the jury found that after he had received his commission, the government permitted him to discharge the duties of the office, and accepted of his services therein prior to the time of his taking the oath and giving the bond, he was entitled to compensation from the time when he commenced to discharge his official duties and his services in the office were accepted by the government; and that it being admitted that he had collected the sum of $577,791.28, he was entitled to compensation at the rate of $833.33 per month during the time he held the office of collector, counting from the time when, after receiving his commission, he was permitted by the government to discharge the duties of the office, and his services were accepted therein, although, during a portion of such time, he had not taken his official oath, nor given his official bond. To this refusal and instruction there was an exception by the plaintiffs.

"9

It is contended that there was error in the instruction that the collector was entitled to compensation for the time before he took the oath and gave the bond. His commission was dated March 4, 1863, and the government permitted him to discharge the duties of the office, and accepted his services from March 11, 1863. At that time the act of July 2, 1862, (12 St. 502,) was in force, which provided that every person appointed to any office of profit under the government, in any civil department of the public service, except the president, should, "before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe" an oath or affirmation, the form of which is given. Section 4 of the act of July 1, 1862, (12 St. 433,) provided that, before any collector of internal revenue should "enter upon the duties of his office," he should give a specified bond, with sureties. The compensation to which Denison was entitled was at the rate of $10,000 a year, under section 34 of the act of July 1, 1862, (12 St. 445.) That section allows the compensation to the collector "appointed, in full compensation for his services and those of his deputies. The compensation is by a specified percentage commission, to be computed on the moneys "paid over and accounted for under the instructions of the treasury department," the commissions not to exceed $10,000 a year, in any case. The compensation is given by the statute to the collector, when appointed, and is based wholly on the amount of moneys paid over and accounted for. If he is appointed, and acts, and collects the moneys, and pays them over and accounts for them, and the government accepts his services and receives the moneys, his title to the compensation necessarily accrues, unless there is a restriction growing out of the fact that another statute says that he must take the oath "before being entitled to any of the salary or other emoluments" of the office. But we are of opinion that the statute is satisfied by holding that his title to receive, or retain, or hold, or appropriate the commissions as compensation, does not arise until he takes and subscribes the oath or affirmation, but that, when he does so, his compensation is to be computed on moneys collected by him, from the time when, under his

appointment, he began to perform services as collector, which the government accepted, provided he has paid over and accounted for such moneys. This was, in substance, the charge given, and it was correct.

The counsel for the plaintiffs requested the court to instruct the jury that during the time Denison was collector the law did not provide for the reimbursement to collectors of internal revenue of any amount expended by them for advertisements; and that there being no proof that the secretary of the treasury had ever made any allowance to Denison for amounts expended by him for advertisements, nothing could be allowed to the defendants for advertising. The court refused to give that instruction, but gave the following: That "if, in accordance with the terms of the statute, defendant Denison was required, as collector of internal revenue, to make, and did make, in certain newspapers, certain advertisements for which he was required to pay, and did pay, and if, also, the jury found that the amounts so paid were reasonable and proper amounts, he was entitled to a credit for the amounts so paid by him, although the secretary of the treasury had made no allowance to him therefor." To this refusal and instruction the plaintiffs excepted. The nineteenth section of the act of July 1, 1862, (12 St. 439,) required the collector to give notices by advertisement that duties were due and payable, and to advertise notices of the sale of articles distrained. The item of $777 for bills for advertising was disallowed by the accounting officers, because section 34 of the act of July 1, 1862, before cited, after providing for compensation, went on to say that there should also be allowed to the collector his necessary and reasonable expenses for stationery and blank books used in the performance of his official duties, to be paid out of the treasury, after being duly examined and certified by the commissioner of internal revenue, and did not include expenses for advertising, and they were not included until provided for by amendment by the act of March 3, 1865, (13 St. 469,) which took effect April 1, 1865. But we are of opinion that, as the statute required the advertisements to be made, the collector was entitled to a credit for the reasonable and proper amounts paid therefor, although such amounts were not formally allowed or certified. It was submitted to the jury to say whether the collector made and paid for the advertisements, and whether they were such as fell within those named in the statute, and whether the amounts paid for them were reasonable and proper. The instruction given is not open to the criticism made that it submitted to the jury a question of law. It was not left to the jury to determine whether the advertising for which credit was claimed was such as the collector was required to make in the sense that it was left to the jury to determine what advertisements the law required to be made. But it must be inferred that the court explained the statute as to the advertisements, and the fair meaning of the instruction is that it was left to the jury to say whether, in view of the advertisements which the statute as explained by the court required, those made by the collector were such advertisements, and were made and were paid for, and were reasonable and proper in amount.

In Andrewe v. U. S. 2 Story, 202, which was a suit on the bond of a col-* lector of customs, Mr. Justice STORY held that expenditures by a collector of customs for office-rent, fuel, clerk-hire, and stationery were properly to be deemed incidents to the office, and ought, therefore, to be allowed as proper charges against the United States, and as a set-off in the suit. In that case, the statute required the collector to keep and transmit accounts of those particular expenditures. The treasury department disallowed them, but the court held that the statute contemplated their allowance, and that the collector had a right to be reimbursed their amount, even though he did not keep or transmit the accounts of them. The view taken was that, if a claim, though not strictly of a legal nature, was ex æquo et bono due to the defendant, for moneys expended on account of, and for the benefit of, the United States, he was entitled to an allowance and compensation therefor, upon the footing of a quantum

meruit, under section 3 of the act of March 3, 1797, (1 St. 514.) That statute is now embodied in section 957 of the Revised Statutes, which provides that in all suits against a person accountable for public moneys he may show that he is equitably entitled to credits which have been rejected. In U. S. v. Wilkins, 6 Wheat. 135, 144, this court said of section 3 of the act of 1797 that it supposed that "not merely legal but equitable credits ought to be allowed to debtors of the United States by the proper officers of the treasury;" that all such credits could be allowed at the trial of the suit; and that a judgment was required for such sum only as the defendant, in equity and justice, should be proved to owe to the United States. This view was affirmed in Gratiot v. U. S. 15 Pet. 336, 370, and in Watkins v. U. S. 9 Wall. 759, 765.

In the present case, the statute required the advertisements to be made, and there is nothing in it which implies that they are to be paid for out of the compensation to be allowed, or that they are not to be reimbursed because they are not named with stationery and blank books, or because "advertising" was first inserted in the act of 1865. In section 115 of the same act of July 1, 1862, (12 St. 488,) it was provided that the pay of collectors should be paid out of the accruing internal duties or taxes before they were paid into the treasury, and $500,000 was appropriated "for the purpose of paying" various specified expenses, including "advertising, and any other expenses of carrying this act into effect." This advertising was an expense of carrying the act into effect, and was aside from the pay of the collector, and was to be paid out of the treasury, as an expense. The allowance of it by the accounting officers, or otherwise, was not a prerequisite to the right of Denison to have it credited to him in this suit. Campbell v. U. S. 107 U. S. 407; S. C. 2 Sup. CT. REP. 759.

The judgment of the circuit court is affirmed.

(112 U. S. 129)

NIX . ALLEN, Ex'x, and others, Ex'rs.

(November 3, 1884.)

1. LAND LAWS-PAYMENT FOR PART DOES NOT CREATE RIGHT TO CLAIM THE WHOLE QUARTER SECTION.

Under the act of September 4, 1841, c. 16, (5 St. 453,) there could be no entering part of a quarter section of land and saving a right to enter the rest. The law would not accept the payment of the price of the 40 acres actually occupied by a settler as part payment of the whole quarter section.

2. SAME

RIGHT OF PRE-EMPTION DEFINITION.

The right of pre-emption is the right to enter lands at the minimum price in preference to any other person, if all the requirements of the law are complied with.

3. SAME RAILROAD LANDS-ARKANSAS ACT OF 1855-RIGHTS OF SETTLERS.

The Arkansas act of 1855, giving settlers and occupants a preference right of purchasing the lands thereby granted to the railroad company at $2.50 per acre, gave no rights of the kind to persons applying subsequently to its repeal. The privileges of that act would only be secured by complying with the act of 1856.

4. SAME-ACT OF 1871 SECURES PRIVILEGES TO ACTUAL SETTLERS ONLY.

The act of 1871 grants the privilege of a preference purchaser only to a settler who, on or before the eighth of March, 1870, was residing, and had made improvements on, such lands belonging to or claimed by the railroad company, as he desired to buy.

5. SAME-PARTY LITIGANT IS INTERESTED ONLY IN HIS OWN TITLE.

A party can recover land only on the strength of his own title. If he has no title it is a matter of no importance to him that his adversary had none.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

A. H. Garland, for appellant. A. T. Britton, J. H. McGowan, John F. Dillon, and Wager Swayne, for appellees.

71

WAITE, C. J. This is a suit in equity, brought by John B. Nix, the appellant, on the second day of May, 1879, to enjoin the execution of a judgment in ejectment recovered against him by Thomas Allen, the appellee, on the of April, 1879, for the possession of the W. and the S. E. of the N. E. of section 30, township 15 S., range 28 E., in Arkansas, and to obtain a conveyance of the legal title to the property, on the ground that Allen holds The case shows that in 1846 Sarah Nix, the mother of it in trust for him. John B. Nix, then a minor residing with her, took possession of the whole of the N. E. of the section. Mrs. Nix had all the legal qualifications of a preemptor, and while in possession built a house on the N. E. of the quarter section, and cleared and cultivated a portion of the land on that and on each of the other quarters of the quarter. The principal part of the clearing and cultivation, however, was on the quarter where the house stood. On the ninth of February, 1853, congress passed an act granting lands to the state of Arkansas to aid in building a railroad from a point on the Mississippi, opposite the mouth of the Ohio, to the Texas boundary line, near Fulton, in Arkansas. 10 St. 155, c. 59. The lands now in question lie within the limits of that grant, and were withdrawn from entry on the nineteenth of May, 1853, but the granting act contained the usual reservation in favor of preemption settlers. On the twenty-second of April, 1853, Mrs. Nix made and filed her declaratory statement and proof for the pre-emption of the whole of the N. E. of the section. In her statement she fixed the first of April, 1853, as the date of her settlement on the lands. At the time of filing the On the twenty-seventh of statement and proof she made no payment. March, 1854, congress passed the following "Act for the relief of settlers on lands reserved for railroad purposes," (10 St. p. 269, c. 25:) "That every settler on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them: provided, they shall prove up their rights according to such rules and regulations as may be prescribed by the secretary of the interior, and pay for the same before the day that may be fixed by the president's proclamation for the restoration of said lands to market."

On the thirty-first of March, 1854, Mrs. Nix made a pre-emption cash entry of the N. E. of the N. E. of the section, and a patent for this tract was issued in her name under that entry on the tenth of December, 1874. In her affidavit to support the entry she fixed the first of April, 1853, as the date of her settlement, the same as in her original declaratory statement. It is now claimed that this entry was not her own act, but the testimony shows She was feeble at the time and unable to go to the unmistakably that it was. land-office herself, but the business was done for her by Benjamin Nix, her nephew and the guardian of John B. Nix, who furnished the money to make the payment from funds in his hands as guardian. Mrs. Nix had no means of her own, and the $50 which was required to pay for the 40 acres was all that John B. had. Neither the mother nor the son was able to buy more than was then entered. On the twenty-eighth of September, 1858, Mrs. Nix conveyed the land she entered to John B., who arrived at full age during the year 1857. Mrs. Nix and John B. Nix lived together in the house on the N. E. of the quarter section until her death in 1863, and John B. remained While occupying the there down to the time he filed the bill in this case. N. E. of the quarter they have used and cultivated some part of the other quarters, but the actual residence, both of the mother and son, has always been on the part that was entered by and patented to the mother. Mrs. Nix left other heirs besides John B. Nix, some of whom were living when this suit was begun. On the sixteenth of January, 1855, the state of Arkansas transferred the grant of congress, so far as it related to the lands in dis