Henderson v. Poindexter's Lessee. 12 W.

the surveys for the land in controversy, was admitted to rebut the testimony of a witness whose deposition had been taken to prove that the Spanish title papers were fair, and were correctly dated. This paper was admitted, because it related to the official duties of the deputy, was found among his papers after his death, and was proved to be in the handwriting of his principal, who was also dead. Doubts are entertained by some of the judges respecting the propriety of its admission. But this is a question which we think it unnecessary to decide, because the grant not having been laid before the board of commissioners could not have availed the defendant in the court below, who did not bring himself within the reservation of the cession from Georgia.

The plaintiff in error, after the testimony had been laid before the jury, prayed the court to instruct them on several points of [*545] law which grew out of it. The first of these, *which was refused, questioned the validity of a grant made by the United States for land occupied at the time under color of an adverse title. There can be no doubt of the correctness of rejecting this proposition.

The 2d, 3d, and 5th points, which the court was prayed to state as law to the jury, depend on the position that residence in the country on the 27th of October, 1795, was not necessary to the validity of the title set up by the defendant in that court. As the title had not been laid before the board of commissioners, and as residence was indispensable to the validity of a claim, supported by the act of cession from Georgia, we think these instructions were properly refused.

The 8th was unimportant to the case in the view which this court has taken of it. If the question, whether the survey, purporting to bear date in September, 1795, was really made on that day, or was antedated, had been the question to be decided by the jury, as it would have been had this paper been laid before the board of commissioners, the court did right in refusing to grant this prayer. It seems to request the court to say that, in deciding on the verity of a paper alleged to be fraudulent, the paper itself is entitled to more credit than the parol testimony which impeaches it, though the law declares parol testimony to be admissible.

On the other points, the court gave the instruction asked by the plaintiff in error.

We think the plaintiff in error has neither brought himself within the articles of agreement between the United States and the State of Georgia, nor within the acts of congress; and that the judgment of the district court must be affirmed, with costs.

1 P. 94; 6 P. 691; 11 P. 351; 12 P. 410, 657 ; 14 P. 353; 3 H. 212, 750; 6 H. 31; 9 H. 155; 10 H. 627.

The Antelope. 12 W.

THE ANTELOPE. The Spanish and Portuguese Consuls, Claimants.

12 W. 546.

Further explanation of the decree of this court, in S. C. 10 W. 56, and 11 W. 413.

The Africans captured, except those restored to the Spanish claimants, to be delivered to the United States, absolutely and unconditionally, without the precedent payment of expenses. No judgment or decree can be rendered directly against the United States for costs and expenses.

The fees and compensation to the marshal, for keeping &c., captured Africans, where his fees or compensation are chargeable to the United States, are to be paid out of the treas ury, upon a certificate of the amount, to be made by the court, or one of the judges.

THIS cause was argued by the Attorney-General and Key, for the appellants, and by Berrien, C. J. Ingersoll, and Wilde, for the respondents.

TRIMBLE, J., delivered the opinion of the court.

This case having been before this court, and a decree rendered therein at February term, 1825, and again brought up and an explanatory decree made therein, at February term, 1826, the reports of the case in 10 W. 66, and 11 W. 413, are referred to for the general history of its facts and circumstances, and for the principles settled in it by the former decrees of this court. The case was remanded to the circuit court, with directions to make a

final disposition of the controversy between the parties, [* 547 ] pursuant to the principles of the decrees, of 1825 and 1826, of this court.

The circuit court, in order to enable it to decree finally in the case, directed the register to take and report an account of the costs, and also of the expenses of keeping, maintaining, &c., of the Africans, by the marshal, and which account was accordingly reported. Exceptions were filed to the report by both the Portuguese and Spanish claimants.

The circuit court also caused proofs to be taken for the purpose of identifying individually the Africans to be delivered to the Spanish claimants, as directed by the decree of 1826.

Thus circumstanced, the case came on for final hearing before the circuit court. The court decreed that the Portuguese claimant should not be made liable for costs, or any proportion of the expenses and charges of the marshal for maintaining, &c., the Africans; and being of opinion that thirty-nine of the Africans were sufficiently identified by proof, as being the property of the Spanish claimants, directed the thirty-nine Africans, so identified, to be delivered to the Spanish claimants, upon their paying a proportion of the costs and expenses reported by the registrar, in the ratio of the number of

The Antelope. 12 W.

Africans delivered, to the whole number; and the circuit court was further of opinion that the residue of the Africans not directed to be delivered to the Spanish claimants, should be delivered to the United States, to be disposed of according to law; but, on the question whether they shall be delivered absolutely, or on condition of pay. ment of the balance of the expenses which will remain unsatisfied after charging the Africans adjudged to the Spanish claimants in their due ratio, the judges of the circuit court being divided in opinion, ordered this difference of opinion to be certified to this court.

The case comes up on this certificate of division, and also upon an appeal prayed by the district attorney on behalf of the United States, and allowed: "From so much of the said final order of the circuit court as relates to the apportionment among the several parties, of

the costs and expenses, in the preservation, maintenance, [* 548 ] *and custody of the said Africans, and of the costs and expenses of the various proceedings which have been had in relation to the said Africans, and also from so much of said order as decrees thirty-nine of the said Africans to the Spanish claimants."

We will first consider the question arising upon the certificate of division of opinion between the judges of the circuit court.

It appears, from the opinion delivered by the circuit court and from the registrar's report, that; in making up that report as to the amount of expenses, sixteen cents per diem was allowed the marshal for the custody, maintenance, &c., of the Africans; and the Spanish claimants were charged, as a condition precedent, with the propor tion of expenses of the marshal, after this rate, in the ratio of the number of Africans to be delivered to them. The residue of the mar shal's expenses, at the same rate per diem, is supposed to be meant by the term "expenses," in the question on which the judges were opposed in opinion; and it is supposed the question upon which the judges were opposed in opinion was, whether the Africans not directed to be delivered to the Spanish claimants, should be delivered by the marshal to the United States, absolutely and unconditionally, to be disposed of according to law, or whether it should be imposed on the United States as a condition precedent to their delivery, that the United States should pay to the marshal his claim for expenses at the rate aforesaid, in the ratio of the number of Africans to be delivered to the United States.

The Spanish claimants have not appealed from the decree of the circuit court. As the court had decided that they ought to bear some proportion of the expenses, it was necessary, for the purpose of ascertaining the amount which they were to pay, to fix upon some data for making up the account of expenses, so far as related to them

The Antelope. 12 W.

But as they do not complain, this court is not called upon to decide whether they were overcharged or not, nor to determine whether the rate of sixteen cents per diem was warranted by law, as the circuit court supposed, so far as the Spanish claimants are concerned.

As relates to the United States, the question pro- [549] pounded by the judges of the circuit court, and upon which they were divided in opinion, does not necessarily draw in question the data or rate of the marshal's allowance for expenses; but whether the payment of his expenses, at any rate or to any amount, ought to be made a precedent condition to the delivery of the Africans to the United States. It may well be doubted, however, whether the state law does, as supposed by the court, authorize the marshal to charge, as matter of right, sixteen cents per diem for keeping, maintaining, &c., the Africans; although it might furnish some guide, in an appeal to the sound discretion and justice of the government, in making him a reasonable compensation. It is true, the 1st section of the "Act for providing compensation for the marshal," vol. 3, c. 125,1 after declaring the fees and compensation to be allowed the marshal for certain enumerated services, &c., adds: "For all other services not herein enumerated, such fees or compensation as are allowed in the supreme court of the State where the services are rendered." This has generally been construed, and we think rightly, to mean, that where the services performed are not enumerated in the act of congress, but such services are enumerated, and a fixed allowance made therefor in the state laws, they shall fix the rule of compensation. The case under consideration is wholly unprovided for by the laws and usages of the State. The Africans to be delivered to the United States are neither slaves, in contemplation of law, nor prisoners of war, nor persons charged with crimes. The compensations allowed by the laws of the State to sheriffs and jailers, in these cases, do not, therefore, furnish any positive rule of law or right, as to the compensation which ought to be allowed the marshal, in the peculiar circumstances attending these Africans. He is, Do doubt, entitled to a reasonable compensation; but that must depend upon the circumstances of the case, and not any positive rule. But, be that as it may, it could not legally enter into the judgment and decree of the court, so far as that judgment or decree was to affect the rights of the United States, or the rights

of the marshal as * against the United States. It is a gen- [* 550 ] eral rule, that no court can make a direct judgment or decree against the United States, for costs and expenses, in a suit to

The Antelope. 12 W.

which the United States is party, either on behalf of any suitor or any officer of the government. As to the officers of the government, the law expressly provides a different mode.

The 3d section of the "Act for regulating process," &c., vol. 2, c. 137,1 makes provision for the fees and compensation to be allowed the marshal, similar to the "Act for providing for compensation to marshals," &c., above cited. The 4th section makes some further regulations concerning the fees and compensation to be allowed clerks and marshals, and then provides, "that the same, having been examined and certified by the court, or one of the judges of it, in which the services shall have been rendered, shall be passed in the usual manner at, and the amount thereof paid out of, the treasury of the United States," &c.

These provisions show, we think incontestably, that, whether the marshal's fee and compensation for services rendered the United States be fixed by some positive statutory rule, as in enumerated services, or depends upon what is reasonable and just under the circumstances of the case, as in non-enumerated services, they must be certified to and paid out of the treasury, and cannot lawfully constitute any part of the judgment or decree in the cause. It would, indeed, be extraordinary, if the marshal, who is the servant of the government, and holds possession of the Africans merely by its authority, could obstruct the operations of the government by a claim for compensation for his services. The laws give the marshal no lien on the Africans; and we can discover no principle which will justify the court in creating a lien, in effect, by its decree. There is no necessity for such a proceeding.

The 7th section of "An act in addition to the acts prohibiting the slave-trade,”2 appropriates $100,000 to carry the law into effect. The 2d section of the act authorizes the President of the United

States to make such regulations and arrangements as he [* 551] may deem expedient, for the safe-keeping, support, and removal, beyond the limits of the United States, all such negroes," &c., vol. 5, c. 511.

It is not to be doubted that, if a reasonable account for expenses were certified according to law, arrangements would be made to pay it out of the fund appropriated for carrying into effect the laws prohibiting the slave-trade.

We are of opinion it ought to be certified to the circuit court that all the Africans captured in The Antelope, except those directed to be delivered to the Spanish claimants, should be decreed to be deliv