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177 U. S. 442, 447, 44 L. ed. 839, 841, 20 of the United States, did not raise such Sup. Ct. Rep. 687, 689, "the question wheth-question or specially set up or claim such er a right or privilege, claimed under the right or immunity in the trial court, this Constitution or laws of the United States, court cannot review such final judgment, was distinctly and sufficiently pleaded and and hold that the state enactment was unbrought to the notice of a state court, is it- constitutional, or that the right or immuniself a Federal question, in the decision of ty so claimed had been denied by the highest which this court, on writ of error, is not con- court of the state, if that court did nothing cluded by the view taken by the highest more than decline to pass upon the Federal court of the state. Neal v. Delaware, 103 question because not raised in the trial U. S. 370, 396, 397, 26 L. ed. 567, 574; court as required by the state practice. Mitchell v. Clark, 110 U. S. 633, 645, 28 L. Spies v. Illinois, 123 U. S. 131, 181, sub nom. ed. 279, 283, 4 Sup. Ct. Rep. 170, 312; Boyd Ex parte Spies, 31 L. ed. 80, 91, 8 Sup. Ct. v. Nebraska ex rel. Thayer, 143 U. S. 135, Rep. 21; Miller v. Texas, 153 U. S. 535, 538, 180, 36 L. ed. 103, 116, 12 Sup. Ct. Rep. 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Morri375." son v. Watson, 154 U. S. 111, 115, 38 L. ed. So, if the highest court of the state, by its 927, 929, 14 Sup. Ct. Rep. 995. Of course, final judgment, sustains the validity of a if upon examining the record this court had state enactment drawn in question there as found that a Federal question was properly repugnant to the Constitution, treaties, or raised, or that a Federal right or immunity laws of the United States, or denies a right, was specially claimed, in the trial court, privilege, or immunity specially set up or then our jurisdiction would not have been claimed in that court for the first time under defeated by the mere failure of the highest the Constitution or any treaty, statute, or court of the state to dispose of the question authority exercised under the United States, so raised, or to pass upon the right or imthis court could review that judgment, al-munity so claimed.

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

though no Federal question was distinctly It results from what has been said that raised or insisted upon in the trial court. no Federal question is sufficiently presented In the present case the statute was not by the record for our determination; consedrawn in question in the trial court as inval-quently, the writ of error must be dismissed id under any clause of the Constitution ex- for want of jurisdiction in this court. cept the one relating to commerce. It was It is so ordered. 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

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

บ.

CHARLES BORCHERLING, Receiver. Claims-debt due from United Statestransfer by appointment of receiver by state court-preference to local creditors.

1.

2.

3.

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.

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.

An ex 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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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 said money 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

APPEAL from the Court of Claims to re any indorsement of the draft referred to in

the petition.

view a judgment awarding the receiver of a creditor of the United States a sum of "A duly certified copy of the order was money paid to such creditor in disregard of served upon Price August 10, 1892. Neverthe order of a state court appointing a re-theless, after that date Price received from ceiver of such creditor's personal property. Affirmed.

See same case below, 35 Ct. Cl. 311.

Statement by Mr. Justice Shiras:
The facts of this case were thus found by

the court of claims:

"By act of Congress approved February 23, 1891, the Secretary of the Treasury of the United States was authorized and directed to adjust, upon principles of equity and justice, the accounts of Rodman M. Price, late 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 other wise 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 appointment 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

the Assistant Treasurer of the United States 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.

for such

"On the 10th day of October, 1892, 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 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 attachnient against Price for contempt of court in disobeying the order of August 8, 1892. By

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an order made May 18, 1894, the court held him to be guilty of such contempt, and he was directed to pay the receiver the sum of $31,704.08, and a fine of $50 and costs, and in default of obedience to that order to be 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.

| his attorney, was endeavoring to obtain pay. ment at the Treasury of the balance, about $30,000, of this debt, and appropriate it for his own use, issued orders against Price, enjoining 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 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, re"The Secretary was advised that Mrs. For-ceiver, and Anna M. Forrest, administratrix, rest 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 Price, 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 his attorney, but be transmitted to the chancery court of the state of New Jersey, at Trenton, 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.'

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 nowise to interfere with the claim of any creditor of the said Rodman M. Price, resident 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 "On December 4, 1893, the chancery court herein on the 19th of December, instant, of New Jersey, being informed by the receiv-restraining and enjoining Rodman M. Price er that Price, assisted by John C. Fay, Esq., from receiving, etc., any warrants or drafts

22 S. C.-39.

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from the Treasury in payment of the whole "On the 25th of December, 1893, Borcheror any part of the balance due aim under the ling, receiver, addressed a letter to the Secreact of February 23, 1891; and said injunc-tary of the Treasury, claiming that*on and tion order shall not operate to affect said sum of $7,900.'

after October 10, 1892, all property in the right to Price to receive from the United States the balance under the act approved February 19, 1881, passed to him, the receiv er. He reminded the Secretary that on the 27th of November, 1893, he had the honor of advising the Treasury of his appointment and inclosing a copy of the order of the chancellor; that Mr. Fay, attorney for Mr. Price, had full notice of the receivership, as well as of the injunction of the court of chancery addressed to Price and his attor neys forbidding them from receiving any part of the $31,000; and that both Fay and Price had committed contempt of court. The receiver asked the Secretary to take the opinion of the Attorney General upon the following questions:

"Counsel for the receiver, Friday, December 22, 1893, addressed the Assistant Secretary of the Treasury, setting forth the fact that the order of that day had been hastily acted upon, and explaining that the judge sent a verbal order to counsel to be in court at 1 o'clock; that he had already told Mr. Fay, attorney of Price, that he wanted copies of his papers served two days in advance, in compliance with the rules; that at 12 o'clock he had been telegraphed for to go out of the city on account of illness in his family, and had sent a message to that effect to the judge. The letter also notified the Secretary that the receiver claimed that the money under the Redfield Case belonged to the receiver, and not to Price. Counsel asked a reasonable delay; that he was obliged to leave Washington, but expected fully to return Saturday night; and expressed hope that 'no action will be railroaded through to pay out any money to-morrow.' He also notified the Treasury that a mandatory or-ises? der had been issued against Price in New Jersey, and asked that before any action was taken to paying Price, that he (counsel) might be heard to show reason why the money had not passed to the receiver under the ruling of the Redfield Case, copy of which he inclosed.

"The same day counsel for the receiver sent the following telegram to the Secretary of the Treasury:

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'Attorney for Receiver.' "On the same day, namely, Friday, Decem ber 22, 1893, the Acting Secretary of the Treasury indorsed a copy of the order of the supreme court of the District of Columbia of December 22, with a reference to the Second Comptroller to issue a certificate in favor of Rodman M. Price for $7,900, 'the balance to be withheld pending an injunction against Price from receiving said balance.'

"On the same day, Friday, December 22, 1893, Second Comptroller certified that there were due and payable to Rodman M. Price $7,900, the balance, $23,100, to be withheld 'pending an injunction against Price from recovering said balance now pending before the supreme court of the District of Columbia.'

"The draft on navy warrant No. 907, dated December 23, 1893, and payable to the order of Rodman M. Price, late purser, United States Navy, for $7,900, was paid at the Treasury December 23, 1893, by the Treasurer of the United States, said draft being indorsed 'Rodman M. Price, late purser, United States Navy; John C. Fay.'

"1. Did the appointment of a receiver by the chancery court of New Jersey convey to that officer the property in the claim against the United States of Rodman M. Price?

"2. Would payment to the receiver be a quittance to the United States in the prem

"3. Can the Secretary of the Treasury safely pay to Rodman M. Price or his heirs the money still unpaid under the act of February 19, 1891, now that the receiver claims that it should be paid over to him?

"A similar letter was addressed by the receiver and his counsel to the Secretary of the Navy.

"On April 1, 1899, the Comptroller ordered the balance, $23,100, to be paid to | Charles Borcherling, receiver, and the same was paid at the Treasury that day to Mr. Borcherling, the present claimant."

Upon the foregoing findings of fact the court decide, as a conclusion of law, that the claimant is entitled to recover from the United States the sum of seven thousand and nine hundred dollars ($7,900).

Thereafter an appeal was allowed and taken to this court.

Messrs. William H. Button and Assistant Attorney General Pradt for appellant. Messrs. Cortlandt Parker and Frank W. Hackett for appellee.

Mr. Justice Shiras delivered the opinion of the court:

The facts and law of this case were so fully and satisfactorily discussed in the court below that its opinion might well be adopted as that of this court. 35 Ct. Cl. 311.

We shall, however, briefly examine some of the propositions urged in the brief of the government filed in the case.

The first and principal contention is that the United States is a sovereignty, and has absolute control of the manner in which it shall pay its debts, the persons to whom they shall be paid, and, in fact, whether they shall be paid or sued upon at all; that it is incompetent for the state of New Jersey, through a statute or a decree of its courts, to direct to whom such a debt shall be paid; 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 United States does not recognize, through comity, the passing of title to a claim against it to a receiver appointed 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.

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.

It is not necessary for us to consider As to the contention that the debt due whether the power of the United States over from the United States to Price could not debts due by it and over the mode by which be transferred from Price to the claimant by such debts shall be paid is wholly unrestrict-operation of the laws of New Jersey, nor by ed, because the United States has not chosen any decree that the courts of New Jersey, to stand upon its sovereignty in such par- operating under such laws, could make, it is ticulars, but has provided in the act of sufficient to say that this court has held March 3, 1887 (24 Stat. at L. 505, chap. otherwise. 359), that the court of claims and, concur- In Vaughan v. Northrup, 15 Pet. 1, 10 L. rently, the district and circuit courts of the ed. 639, Mr. Justice Story, delivering the United States, "shall have jurisdiction to opinion of the court, said: "The debts due hear and determine all claims founded upon from the government of the United States the Constitution of the United States or any have no locality at the seat of government. law of Congress, except for pensions, or up- The United States in their sovereign capacion any regulation of any executive depart- ty have no particular place of domicil, but ment, or upon any contract, express or im- possess, in contemplation of law, an ubiquity plied, with the government of the United throughout the Union; and the debts due States, or for damages, liquidated or unli- by them are not to be treated like the debts quidated, in cases not sounding in tort, in of a private debtor, which constitute local respect of which claims the party would be assets in his own domicil;" and, accordingly, entitled to redress against the United States it was held in that case that "the adminiseither in a court of law, equity, or admiral-trator of a creditor of the government, duly 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 public 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 part 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

appointed in the state where he [the credit-
or] was domiciled at his death, has full au-
thority 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 govern-
ment or at any other place where the public
funds are deposited;
but the mon-

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eys so received constituted assets under that
administration, for which he was accounta-
ble 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 Sec-
retary of the Treasury, or any officer there-
of, 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 Jer-
sey was affirmed. Two things were thus de-
termined,-first, generally, that it was com-
petent for a state court of the domicil of a
creditor of the United States, and having ju-
risdiction over his person, to decide a con-
troversy 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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