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Mitchell v. Clark, 110 U. S. 633, 645, 28 L. ed. 279, 283, 4 Sup. Ct. Rep. 170, 312; Boyd v. Nebraska ea rel. Thayer, 143 U. S. 135, 180, 36 L. ed. 103, 116, 12 Sup. Ct. Rep. 375.” So, if the highest court of the state, by its final judgment, sustains the validity of a state enactment drawn in question there as repugnant to the Constitution, treaties, or laws of the United States, or denies a right, privilege, or immunity o set up or claimed in that court for the first time under the Constitution or any treaty, statute, or authority exercised under the United States, this court could review that judgment, although no Federal question was distinctly raised or insisted upon in the trial court. In the present case the statute was not drawn in question in the trial court as invalid under any clause of the Constitution except the one relating to commerce. It was not even asserted there to be invalid under “various other provisions” of that instrument. The statements in the motion for nonsuit, that “the cause of action alleged in such action has not been proved,” and that “no cause of action has been proved in either of the actions consolidated in the action on trial,” were too vague and general to indicate that the defendant claimed anything under that Amendment. The record before us is consistent with the idea that the defendant did not claim, in the trial court, in any form, generally or specially, that the statute deprived it of its property without due process of law, or denied to it the equal protection of the laws. We therefore cannot hold that the court of appeals, by its final judgment, sustained the validity under the Constitution of the United States of the statute drawn in question by the defendant, or that it denied any right or immunity now claimed by it under the 14th Amendment; for that court simply declined to consider any Federal question except that made under the commerce clause of the Federal Constitution, assigning as the reason therefor that no point was made at the trial in respect of any other clause of that instrument. In so holding the court followed the settled rule of practice in that state. On that practice alone was based its refusal to consider a Federal question not brought to the attention of the trial court. Vose v. Cockcroft, 44 N. Y. 415; Delaney v. Brett, 51 N. Y. 78. "Now, where a party drawing in question in this court a state enactment as invalid under the Constitution of the United States, or asserting that the final judgment of the highest court of a state denied to him a right or immunity under the Constitution

of the United States, did not raise such question or specially set up or claim such right or immunity in the trial court, this court cannot review such final judgment, and hold that the state enactment was unconstitutional, or that the right or immunity so claimed had been denied by the highest court of the state, if that court did nothin more than decline to pass upon the Federa question because not raised in the trial court as required by the state practice. Spies v. Illinois, 123 U. S. 131, 181, sub nom. Ea parte Spies, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. 21; Miller v. Teacas, 153 U. S. 535, 538, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Morrison v. Watson, 154 U. S. 111, 115, 38 L. ed. 927, 929, 14 Sup. Ct. Rep. 995. Of course, if upon examining the record this court had found that a Federal question was properly raised, or that a Federal right or immunity was specially claimed, in the trial court, then our jurisdiction would not have been defeated by the mere failure of the highest court of the state to dispose of the question so raised, or to pass upon the right or immunity so claimed. It results from what has been said that no Federal question is sufficiently presented by the record for our determination; consequently, the writ of error must be dismissed for want of jurisdiction in this court. It is so ordered.

Mr. Justice Gray did not hear the argument or take part in the decision of this Case.

(185 U. S. 223) UNITED STATES, Appt., to.

CHARLES BORCHERLING, Receiver.

Claims—debt due from United States– transfer by appointment of receiver by state court—preference to local creditors.

1. Payment to a creditor of the United States by the Secretary of the Treasury after due notice of the appointment, by a court of chancery of the state where the creditor was domiciled and personally served with process, of a receiver of such creditor's personal property for the payment of an unsatisfied judgment against him, and of an order of such court restraining such creditor from receiving any part of the debt to his credit, is no defense to a claim by the receiver to recover from the United States in the court of claims the amount so paid.

2. The general rule that the courts of one state will not aid the officers of another to withdraw funds or property of a decedent, without providing for local creditors, does not require the Treasurer of the United States, authorized to adjust and pay over the amount found due a creditor of the United States, to prefer the latter's creditors resident in the District of Columbia over a receiver of personal property of such credItor appointed by a court of chancery of the state where he was domiciled and was personally served with process.

3. An ea parte modification of an order of the supreme court of the District of Columbia enjoining a creditor of the United States from receiving or collecting the sum due him,

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Statement by Mr. Justice Shiras:

The facts of this case were thus found by the court of claims:

“By act of Congress jo February 23, 1891, the Secretary of the Treasury of the United States was authorized and directed to adjust, upon principles of * and justice, the accounts of dman M. Price, }. purser in the United States Navy and acting navy agent at San Francisco, crediting him with the sum paid over to and receipted for by his successor, A. M. Van Nostrand, acting purser, January 14, 1850, and pay to said Rodman M. Price, or his heirs, out of any money in the Treasury not otherwise appropriated, any sum that may be found due him upon such adjustment. * * “August 31, 1892, the Treasury officials adjusted Price's accounts, and found there was due him $76,204.08, which included a credit of $75,000 that Price said he had advanced to Van Nostrand from his private funds.

“In 1857 Samuel Forrest recovered in the supreme court of New Jersey a judgment against Price for $17,000 and costs. Execution on that judgment was returned unsatisfied. Forrest died in 1869, intestate.

“In 1874 his widow, Anna M. Forrest, as administratrix of his estate, revived the judgment by scire facias. In her bill she prayed discovery, injunction, and the #. pointment of a receiver. Price and his wife answered. The cause slept till August 9, 1892, when Mrs. Forrest, administratrix, filed a petition stating that since filing her bill of complaint no payment had been made on the judgment against Price; that neither she nor her solicitors had been able to find any personalty or real estate belonging to Price by levy upon and sale of which any part of the amount due on the judgment could be obtained; that it had lately come to her knowledge that about $45,000 was about to be paid Price by officers of the Treasury of the United States; that that sum was to be paid by the delivery to Price or his attorneys of a draft of the Treasurer of the

United States payable to his order; that said draft was to be made and the transaction closed on the 15th day of August thereafter; and if Price obtained j". he would, unless restrained, put the same beyond the reach of the petitioner. “The petitioner prayed the appointment of a receiver of the draft, and that Price be ordered immediately on the receipt of such draft to indorse the same to the receiver, to the end that the same might be received by him as an officer of the court and disposed of according to law. “The chancellor, August 8, 1892, issued a rule, returnable September 12, 1892, to show cause, and restraining Price from making any indorsement of the draft referred to in the petition. “A duly certified copy of the order was served upon Price August 10, 1892. Nevertheless, after that date Price received from the Assistant Treasurer of the United States 12 at Washington, and, without permission of: the court, collected for several"drafts signed." by that officer for the respective sums of $2. 704.08, $13,500, $20,000, and $9,000, in all the sum of $45,204.08, leaving in the hands of the United States of the amount due on the settlement of Price's accounts the sum of about $31,000. “On the 10th day of October, 1802, Charles Borcherling was appointed by the chancery court receiver in said cause of the property and things in action belonging or due to or held in trust for Price at the time of issuing said executions, or at any time afterwards, and especially of said four drafts, with authority to possess, receive, and sue for such property and things in action and the evidence thereof; and it was made the duty of the receiver to hold such drafts subject to the further order of the court. The receiver was required to give bond in the sum of $40,000, conditioned for th faithful discharge of his duties. At the same time Price was ordered to convey and deliver to the receiver all such property and things in action and the evidence thereof, and especially forthwith to indorse and deliver the drafts to him, and he and all agents or attorneys appointed by him were enjoined and restrained from intermeddling with the receiver in regard to said drafts, and ordered, if in possession or control thereof, to deliver them to the receiver with an indorsement to that officer or to the clerk of the court for deposit; provided the order should be void if the drafts other than the one for $9,000 were delivered with Price's indorsement to the clerk, the proceeds to be deposited to the credit of the cause. Price was expressly enjoined from making any indorsement or appropriation of the drafts other than to the receiver or the clerk for deposit. “The receiver gave the required bond, and having entered upon the duties of his office, he caused a copy of the above order to be served upon Price, and demanded compliance with its provisions. “In 1892, the particular day not being stated, the chancery court issued an attachment against Price for contempt of court in disobeying the order of August 8, 1892. By

an order made May 18, 1894, the court held him to be guilty of such contempt, and he § was directed to Fo the receiver the sum of 3t $31,704.0S, and a fine of $50 and costs, and * in default of obedience to that "order to be

his attorney, was endeavoring to obtain payment at the Treasury of the balance, about $30,000, of this debt, and appropriate it for his own use, issued orders against Price, en

imprisoned in the county jail until it was complied with. 52 N. J. Eq. 16, 31, 29 Atl. 215. Upon appeal to the court of errors and appeals, the order of the chancery court was affirmed. 53 N. J. Eq. 693, 35 Atl. 1130. “The Treasury Department, at the time of allowing the $76,204,08, withheld $31,000, under the provisions of the act of March 3, 1875. (18 Stat. at L. 481, chap. 149), to await the determination of a suit to be instituted against Price, or surety upon Van Nostrand's bond as acting purser, United States Navy. “The suit was instituted, but was dismissed some time previous to December 22, 1893. “On the 16th of July, 1892, counsel for Mrs. Forrest wrote the Secretary of the Treasury referring to a previous letter to the Department of May 14, 1891, in the matter of the claim of Rodman M. Price, and asking to be seasonably advised in case the Department took action in the direction desired by Price. “The Secretary was advised that Mrs. Forrest could prove to the satisfaction of the Department that if Mr. Price did turn over $75,000, or any large sum, to the United States, a part of that sum, namely, $17,078.04, must have belonged to Mrs. Forrest; that it was trust money, and it would not be equitable to cause that much to be paid to Price. “By letter of November 27, 1893, counsel for the receiver notified the Secretary of the Treasury of Borcherling's appointment and qualification by giving bond of $40,000; that rice, though personally enjoined, had, in contempt of the New Jersey court, indorsed the drafts and collected the proceeds. The letter inclosed is a certified copy of the order of the court, October 10, 1892, appointing the receiver. Counsel in behalf of the receiver made claim for the balance of $31,000 about to be paid Price under act of February 23, 1891. “The letter closed as follows: “I respectfully ask that comity be shown the chancellor of New Jersey, and that the draft to be issued in payment of the balance due and payable to the order of Rodman M. Price be not delivered (or mailed) to said Price or to his attorney, but be transmitted to the chan§cery court of the state of New Jersey, at FTrenton, N.J., where said Price's"rights will be abundantly protected, the receiver, of course, being an impartial officer of the court. I request that before action is taken (other than as asked for by the receiver) due notice may be given me that the receiver may be heard, to set forth the reasons why this disposition should be made of the drafts in question. Let me add that the Forrest judgment and interest now exceeds the sum of $60,000.’ “On December 4, 1893, the chancery court of New Jersey, being informed by the receiver that Price, assisted by John C. Fay, Esq., 22 S. C.—39.

joining him from seeking to obtain payment of any part of that sum. “On December 6, 1893, the receiver notified the Secretary of the Treasury, by letter, that a copy of injunction of December 4 had been served upon Price, and inclosed a copy of the same to the secretary. He also invited the attention of the Secretary to the opinion of the court of claims in Redfield v. United States, in the twenty-seventh volume of reports of the court [p. 393] informed him that he (the receiver) had applied to the supreme court of the District of Columbia for an injunction, and asked that if that court should not grant relief he might have the benefit of the injunction of the New Jersey court now brought to the Secretary's notice. The receiver asked that if no relief were granted by the supreme court of the District that the Secretary send the drafts (otherwise to be handed to R. M. Price) to the chancellor of New Jersey, at Trenton. “The supreme court of the District of Columbia, December 19, 1893, in a proceeding for injunction upon bill of Borcherling, receiver, and Anna M. Forrest, administratrix, after personal service upon Price and Fay, enjoined Price from receiving, assigning, collecting, or indorsing to his own use, by himself or by attorney, any warrants or drafts from the Treasury of the United States in payment, in whole or in part, of any balance remaining unpaid under act of February 23, 1891, until the further order of the court; and it being the design of this order in no-g wise to interfere with the claim of any cred-: itor of" the said Rodman M. Price, residento in this District, against said Price, it is further ordered and decreed that, upon the representation of any person so claiming to be a creditor in this District and the establishment of such claim in a manner that shall satisfy the court of the bona fide existence of such claim, so much of said balance as shall be sufficient to cover any and all such claims so established shall be considered as exonerated from the effect of this decree. “The supreme court of the District, on the 22d of December, 1893, passed the following order in the said suit: “‘From the affidavits of John C. Fay and Jeremiah M. Wilson, claimants, and the assent and affidavit of the said Rodman M. Price, filed this day, it appearing to the satisfaction of the court that John C. Fay, Richard J. Bright, Frank S. Bright, Samuel Shellabarger, J. M. Wilson, and M. L. Woods, residents of the District of Columbia, appear to be bona fide creditors of the defendant, Rodman M. Price; and it appearing to the satisfaction of the court that as such they have bona fide claims for services rendered said Price to the extent of $7,900, it is ordered that the sum of seven thousand nine hundred dollars ($7,900) shall be exonerated from the effects of the decree passed herein on the 19th of December, instant, restraining and enjoining Rodman M. Price from receiving, etc., any warrants or drafts

from the Treasury in payment of the whole “On the 25th of December, 1893, Borcher. or any part of the balance due nim under the ling, receiver, addressed a letter to the Secret act of February 23, 1891; and said injunc-tary of the Treasury, claiming that*on and tion order shall not operate to affect said i after October 10, 1892, all property in the sum of $7,900.

right to Price to receive from the United "Counsel for the receiver, Friday, Decem- States the balance under the act approved ber 22, 1893, addressed the Assistant Secre- February 19, 1881, passed to him, the receivtary of the Treasury, setting forth the fact er. He reminded the Secretary that on the that the order of that day had been hastily 27th of November, 1893, he had the honor of acted upon, and explaining that the judge advising the Treasury of his appointment sent a verbal order to counsel to be in court and inclosing a copy of the order of the at 1 o'clock; that he had already told Mr. chancellor; that Mr. Fay, attorney for Mr. Fay, attorney of Price, that he wanted copies Price, had full notice of the receivership, as of his papers served two days in advance, in well as of the injunction of the court of compliance with the rules; that at 12 o'clock chancery addressed to Price and his attor. he had been telegraphed for to go out of the neys forbidding them from receiving any city on account of illness in his family, and part of the $31,000; and that both Fay and had sent a message to that effect to the Price had committed contempt of court. The e judge. The letter also notified the Secretary receiver asked the Secretary to take the

that the receiver claimed that the money opinion of the Attorney General upon the * under the Redfield Case* belonged to the re- following questions: ceiver, and not to Price. Counsel asked a "1. Did the appointment of a receiver by reasonable delay; that he was obliged to the chancery court of New Jersey convey to leave Washington, but expected fully to re- that officer the property in the claim against turn Saturday night; and expressed hope the United States of Rodman M. Price? that 'no action will be railroaded through to "2. Would payment to the receiver be a pay out any money to-morrow.' He also quittance to the United States in the prem. notified the Treasury that a mandatory orises ? der had been issued against Price in New "3. Can the Secretary of the Treasury Jersey, and asked that before any action was safely pay to Rodman M. Price or his heirs taken to paying Price, that he (counsel) the money still unpaid under the act of Febmight be heard to show reason why the ruary 19, 1891, now that the receiver claims money had not passed to the receiver under that it should be paid over to him? the ruling of the Redfield Case, copy of “A similar letter was addressed by the rewhich he inclosed.

ceiver and his counsel to the Secretary of "The same day counsel for the receiver the Navy. Bent the following telegram to the Secretary "On April 1, 1899, the Comptroller orof the Treasury:

dered the balance, $23,100, to be paid to «Washington, D. C., December 22, 1893. Charles Borcherling, receiver, and the same " 'To Secretary of Treasury,

was paid at the Treasury that day to Mr. "'Washington, D. C.:

| Borcherling, the present claimant." "'Please defer action in Price matter over Upon the foregoing findings of fact the to-morrow. The receiver notifies Treasury court decide, as a conclusion of law, that the that he claims the money is his, not Price's, claimant is entitled to recover from the and will hold the United States responsible United States the sum of seven thousand if paid Price or his attorney.

and nine hundred dollars ($7,900). u 'Frank W. İlackett,

Thereafter an appeal was allowed and “Attorney for Receiver.' taken to this court. “On the same day, namely, Friday, Decem. ber 22, 1893, the Acting Secretary of the | Messrs. William H. Button and AssistTreasury indorsed a copy of the order of the ant Attorney General Pradt for appellant. supreme court of the District of Columbia of Messrs. Cortlandt Parker and Frank December 22, with a reference to the Second W. Hackett for appellee. Comptroller to issue a certificate in favor of Rodman M. Price for $7,900, the balance to Mr. Justice Shiras delivered the opinion * be withheld pending an injunction against of the court: Price from receiving said balance.

The facts and law of this case were so ful. "On the same day, Friday, December 22, ly and satisfactorily discussed in the court 1893, Second Comptroller certified that there below that its opinion might well be adopted were due and payable to Rodman M. Price as that of this court. 35 Ct. Cl. 311. $7,900, the balance, $23,100, to be withheld We shall, however, briefly examine some 'pending an injunction against Price from of the propositions urged in the brief of the

covering said balance now pending before government filed in the case. the supreme court of the District of Colum

The first and principal contention is that

the United States is a sovereignty, and has "The draft on navy warrant No. 907, dat absolute control of the manner in which it ed December 23, 1893, and payable to the or shall pay its debts, the persons to whom der of Rodman M. Price, late purser, United they shall be paid, and, in fact, whether they States Navy, for $7,900, was paid at the shall be paid or sued upon at all: that it is Treasury December 23, 1893, by the Treas. incompetent for the state of New Jersey, urer of the United States, said draft being through a statute or a decree of its courts, indorsed "Rodman M. Price, late purser, to direct to whom such a debt shall be paid United States Navy; John C. Fay.'

'that the United States, through comity, may

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or may not recognize such a New Jersey statute or decree, as it may determine, but without such recognition such statute or decree is inoperative upon the disposition of such debt; that the §. States does not recognize, through comity, the passing of title to a claim against it to a receiver ap: pointed under a state statute or decree; and that consequently, in the present case, the United States had a right to pay the debt to the original creditor, and was discharged by such payment. It is not necessary for us to consider whether the power of the United States over debts due by it and over the mode by which such debts shall be paid is wholly unrestricted, because the United States has not chosen to stand upon its sovereignty in such particulars, but has provided in the act of March 3, 1887 (24 Stat. at L. 505, chap. 359), that the court of claims and, concurrently, the district and circuit courts of the United States, “shall have jurisdiction to hear and determine all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of any executive department, or upon any contract, express or im: plied, with the government of the United States, or for damages, liquidated or unliquidated, in cases, not sounding in tort, in respect of which claims the party would be entitled to redress against the United States es either in a court of law, equity, or admiral# ty, if the United States were suable.” *This is not a case within the category of payments by way of gratuity, payments as of grace, and not of right, as was the case of Emerson v. Hall, 13 Pet. 409, 10 L. ed. 223, and where it was said by Mr. Justice McLean: “A claim having no foundation in law, but depending entirely on the generosity of the government, constitutes no basis for the action of any legal principle. It cannot be assigned. It does not go to the administrator as assets. It does not descend to the heir. And if the government, from motives of Folio policy, or any other considerations, shall think proper, under such circumstances, to make a grant of money to the heirs of the claimant, they receive it as a gift or pure donation,--a donation made, it is true, in reference to some meritorious act of their ancestor, but which did not constitute a matter of right against the government. . In the present case the governinent might have directed the money to be paid to the creditors of Emerson, or to any art of his heirs. Being the donor, it could, in the exercise of its discretion, make such distribution or application of its bounty as circumstances might require. And it has, under the title of an act ‘for the Relief of the Heirs of Emerson,’ directed, in the body of the act, the money to be paid to his legal representatives. That the heirs were intended by this designation is clear; and we think the payment which has been paid to them under this act has been rightfully made; and that the fund cannot be considered as assets, in their hands for the payment of debts.” This distinction between mere grants by

the government by way of gratuity and debts or claims of right was likewise recognized by this court in the French spoliation cases, where it was held that the payments prescribed by the acts of Congress were gratuities, and that creditors, legatees, and assignees in bankruptcy could be rightfully excluded. Blagge v. Balch, 162 U. S. 439, 40 L. ed. 1032, 16 Sup. Ct. Rep. 853. Here the government was not the donor of the money of Price, but was its custodian, awaiting its lawful distribution. As to the contention that the debt due from the United States to Price could not be transferred from Price to the claimant by to operation of the laws of New Jersey, nor by: any decree that the courts of New Jersey, operating under such laws, could make, it is sufficient to say that this court has held otherwise. In Vaughan v. Northrup, 15 Pet. 1, 10 L. ed. 639, Mr. Justice Story, delivering the opinion of the court, said: “The debts due from the government of the United States have no locality at the seat of government. The United States in their sovereign capacity have no particular place of domicil, but possess, in contemplation of law, an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil;” and, accordingly, it was held in that case that “the administrator of a creditor of the government, duly appointed in the state where he [the creditor] was domiciled at his death, has full authority to receive payment and give a full discharge of the debt due his intestate in any place where the government may choose to pay it, whether it be at the seat of government or at any other place where the public funds are deposited; . . . but the moneys so received constituted assets under that administration, for which he was accountable to the proper tribunals . . . [of the state where he was appointed].” Price v. Forrest, 173 U. S. 410, 43 L. ed. 749, 19 Sup. Ct. Rep. 434, was one phase in the present controversy. There the question was between the heirs of Rodman M. Price and Borcherling, who had been appointed by the chancery court of New Jersey receiver of the assets of Price, including the money belonging to him in the Treasury of the United States. It was held by the courts of New Jersey that the receiver was entitled to the money in the Treasury, and the heirs and administrator of Price were enjoined from demanding or receiving from the Secretary of the Treasury, or any officer thereof, the said money or any part thereof. The cause was brought to this court, and, after full consideration, the decree of the court of errors and appeals of the state of New Jersey was affirmed. Two things were thus determined,—first, generally, that it was competent for a state court of the domicil of a creditor of the United States, and having jurisdiction over his person, to decide a controversy, between his heirs and creditors as: to the right to receive moneys held in trust: by the United States; and, second, specifi-" cally, under the facts of the present case,

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