
    THE NEW YORK CENTRAL AND HUDSON BIVEB BAILBOAD COMPANY v. THE UNITED STATES.
    [No. 14770.
    Decided December 17, 1888.]
    
      On the Proofs.
    
    Tlie claimant recovers a general verdict against an internal-revenue collector for taxes illegally collected. The Supreme Court affirms the judgment, with interest, at the same rate “that similar judgments hear in the courts of the State.’’ A State statuie, meanwhile, has reduced interest to 6 per cent. The Circuit Court, in the final judgment, allows interest at 7, and grants a certificate for probable cause. The accounting officers make deductions for errors in the verdict and for the allowance of interest at 7 per cent. The claimant also seeks to recover interest on the judgment.
    I.A general verdict rendered under the instructions of the court can not be re-examined in a collateral action; it must be presumed that the jury followed the instructions and committed no error.
    II.Where the mandate of the Supreme Court directs that interest be recovered at the rate which “similar judgments bear in~the courts of the State,” an error in the rate allowed can not be corrected in a collateral action.
    III.A certificate of probable cause in favor of an internal-revenue collector operates instantly upon the judgment, and practically destroys the debt as against the judgment debtor.
    
      IV.The purpose of the law allowing certificates of probable cause is to enable the Government to relieve a public officer from liability for acts done in its service, and to accept the benefit and assume the responsibility of his acts. The responsibility of the Government is commensurate with the liability of the officer.
    V.Interest can not be recovered in this court where a judgment is the cause of action.
    VI.The Revised Statutes (§ 1091) exclude interest from the jurisdiction of this court when it is iu the nature of damages, and anthorize it only when it is the subject of express agreement.
    VII.A judgment may be treated as a contract for certain purposes, but is not a contract in the sense of a voluntary agreement.
    
      The Reporters statement of the case:
    Tbe following are the facts of this case as found by the court:
    I. In the months of March, April, and May, 1873, John M. Bailey, United States collector of internal revenue, exacted and collected from the claimant several sums of money, amounting in the aggregate to $550,173.60, and paid the same into the Treasury of the United States.
    II. On the 23d May, 1873, an action was commenced in the Supreme Court of the State of Hew York by the claimant against Bailey, for the purpose of collecting the money so exacted and collected, and on the 2d June, 1873, on motion of Bailey, the action was removed from the Supreme Court of the State into the Oircuit Court of the United States for the northern district of Hew York. It was tried before the Circuit Court and a jury at a term commencing March 19, 1878, and on the 27th March, 1878, the jury rendered a verdict in favor of the claimant and against Bailey for the sum of $499,443.68. On the 16th October, 1878, judgment was perfected for the sum of $518,940.99. Bailey appealed from the judgment to the Supreme Court of the United States, which, at a term thereof held in October, 1882, affirmed the judgment, and on the 6th November, 1882, issued its mandate to the Circuit Court, in obedience to which, on the 1st December, 1882, final judgment of affirmance was rendered iu the Circuit Court for the sum of $669,341.39. Said Circuit Court certified that there was probable cause for the act done by said collector, and for which said action was brought and said verdict rendered.
    III. The mandate of the Supreme Court, the judgment entered thereon by the Circuit Court, and the certificate of probable cause referred to in the preceding finding were in the words following:
    
      Mandate of the Supreme Court.
    
    “Whereas, in the present term of October, in the year of our Lord 1882, the said cause came on to be heard before the said Supreme Court on the said transcript of record, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and interest, until paid, at the same rate per annum that similar judgments bear in the courts of the State of New York ; and that the said plaintiff recover against the said defendant, John M. Bailey, $44.38 for its costs herein expended,. and have execution therefor, 6th November, 1882.”
    
      Order of the Circuit Court.
    
    “At a stated term of the Circuit Court of the United States of America for the northern district of New York, in the second circuit, held at the city of Syracuse, on Tuesday, the 21st day of November, in the year of our Lord 1882.
    “Now, on motion of S. T. Fairchild, attorney for said plaintiff, and pursuant to the direction of said mandate, after hearing Mr. Richard Crowley, attorney for said defendant, it is ordered and adjudged by this court that the judgment of said Supreme Court in said action be, and the same is hereby, made the judgment of this court, and that the said judgment rendered by this court October 16, 1878, be, and the same is hereby, affirmed. And it is further ordered and adjudged that the said plaintiff recover of the said defendant, John M. Bailey, the said judgment of $518,940.99, and the said sum of $44.38 for the said costs of the plaintiff in said Supreme Court, with interest on said judgment of $518,940.99 from the 16th day of October, 1878, the day on which said judgment was entered, at the rate of 7 per cent, per annum, together with the costs of plaintiff in this court to be taxed, and that the clerk of this court enter judgment in this court pursuant to this order.
    “ Wm. J. Wallace.”
    
      Final judgment of the Circuit Court.
    
    “ Now, therefore, on motion of S. T. Fairchild, attorney for said plaintiff, and pursuant to the direction .of said mandate and of said order, it is adjudged by the said Circuit Court that ■the judgment of said Supreme Court in said action be, and the same is hereby, made the judgment of this court, and that the said plaintiff, the New York Central and Hudson River Railroad Company, do recover of the said defendant, John M. Bailey, $518,940.99, the amount of said judgment entered in this court October 16,1878, with interest thereon from the entry thereof at the rate of 7 per cent, per annum, which interest at the date hereof amounts to the sum of $149,955.07, together with the sum of $445.33 costs and disbursements as aforesaid, amounting in the aggregate to the sum of $669,341.39.
    “ Judgment signed and entered this 1st day of December, A. D. 1882, at 3 o’clock in the afternoon.
    “ William H. Bright,
    “ Cleric.”
    
      Certificate — Probable cause.
    
    
      “ At a stated session of the Circuit Court of the United States for the northern district of New York, held at Syracuse, in said district, on the 17th day of November, 1885. •
    “ The above-entitled cause having been duly tried at the March term, 1878, of this court, and a verdict rendered therein in favor of the plaintiff and against the defendant for the sum of $499,432,68, and judgment duly entered upon said verdict, now, on motion of Eichard Crowley, of counsel for said defendant, this court does hereby certify and decree that there was probable and reasonable cause for the acts committed by said defendant in his official capacity as collector of internal revenue for the fourteenth internal-revenue collection district of New York, being the same acts complained of in the plaintiff’s complaint and for which said verdict and judgment were rendered.
    ■ “ Wm. J. Wallace,
    « “ Circuit Judge, Second Circuit.
    
    
      “ It is hereby stipulated that the foregoing certificate of probable cause may be entered nunc pro tunc as of March, 1878.
    “ S. T. Fairchild,
    
      “Attorney for Plaintiff.
    
    “Eichard Crowley, “Attorney for Defendant.”
    IV. Subsequent to the entry of the final judgment set forth in the preceding finding, the claimant presented to the proper accounting officers of the Treasury its claim for payment, and on the 1st of February, 1883, the accounting officers allowed and paid thereon the sum of $495,031.57; and on the 25th day of January, 1884, they paid the further sum of $66,331.54; leaving due and unpaid upon the judgment, exclusive of interest subsequently accruing, the sum of $107,978.28, which balance still remains unpaid.
    
      Y. The defense of the action of the claimant against Collector Bailey from its commencement, and through all the proceedings therein, to and including the entry of final judgment, was assumed and conducted by the district attorney and Attorney-General of the United States; and the district attorney, for the purpose of preventing the issue of execution against Collector Bailey on the final judgment, made application to the Circuit Court for the certificate of probable cause required by section 989 of the Eevised Statutes, set forth in finding in.
    VI. The deductions made by the accounting officers from the final judgment before referred to and now maintained by the defendants are as follows :
    Interest computed by the court in the final judgment at 7 per
    cent, instead of 6 per cent.; excess. $21,485.18
    Interest computed by the court on $52,439.72 wrongly included
    in verdict; excess. 12,982.13
    Interest computed by the jury on $147,053.12 improperly embraced in the basis for computation of interest. 50,175. 60
    Penalty due for non-payment. 1, 000. 00
    Interest on $1,000 included in verdict. 341. 05
    Interest computed by court on $1,341.05 . 387.23
    Costs of distraint, etc., necessarily incurred in the collection of that portion of the assessments which the jury found to be due. 2,264.12
    Total.1. 88,635.31
    As to the alleged error of the Circuit Court in allowing interest at 7 per cent., and including the same in the final judgment, this court finds that no appeal therefrom was taken by the defendant or by the United States. As to the alleged errors of the jury specified in the remaining items above set forth, this court finds that it does not appear what items or matters entered into the general verdict of $499,443.68, unless the same can be deducted or inferred from the record of the case of Bailey v. The New YorJc Central and Hudson River Railroad Company (106 U. S., E. 109), on file in the Supreme Court, which record this court refers to as a part of its findings.
    
      Mr. 8. T. Fairchild for the claimant:
    The facts of this case bring it exactly within the provisions of the statutes. Section 989 is imperative. The judgment “shall” be paid. Not some part of it to be ascertained, but the whole of it; and the whole is the sum of $669,341.39 and interest on that sum from December 1, 1882, tbe date of the judgment, “until paid.” (See EJ. Dunnegan v. The United States, 17 C. Cls. E., 247 ; and United States v. Sherman, 98 U. S., 565.) These cases sustain the allegation in the petition of the claimant, that “by 989 of the Eevised Statutes of the United States, the liability to pay said final judgment is transferred from said Bailey to the United States.”
    
      Mr. Heder J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    The errors noted in the special pleas are three in number, viz:
    (1) The computation of interest at 7 per cent, in making up the judgment, when the legal rate was 6 per cent.
    (2) The computation of interest, in making up the verdict, on the full amount which the plaintiff insisted upon as having been wrongfully collected, $480,439.85, when it should have been computed only on the amount found by the jury to have been wrongfully collected.
    (3) That the amount found for the plaintiff improperly included $2,264.12, the costs of certain distraints made in process of collecting taxes other than those found by the jury to have been wrongfully collected.
    The errors are referred to as made* by the jury, but it appears that the error noted in the first plea, the computation of interest at 7 per cent, from October 16, 1878, to December 1, 1882, was made by the court in rendering the final judgment, and that no jury had the case later than March, 1878.
   Nott, J.,

delivered the opinion of the court:

This is an action brought upon a judgment which was recovered by the claimant against an internal-revenue collector of the United States, and which was rendered under the mandate of the Supreme Court. The accounting officers of the Treasury, while they have'allowed and paid to the claimant the greater part of the judgment, have withheld, in zealous defense of the Government, $107,978.28, with subsequently accrued interest; and.it is for this' money so withheld that the action is brought.

The important and significant amounts in this controversy are as follows:

The arnouut levied and paid into the Treasury by the collector was... $550,173.60

The verdict of the jury March 28, 1878. 499, 443. 68

The judgment entered thereon October 16, 1878, including'interest and costs. 518,940.99

The judgment entered December 1, 1882, under the mandate

of the Supreme Court. 669,341.39

The amount thereon allowed and paid at the Treasury. 561,363.11

The amount withheld, exclusive of subsequently accrued interest.i.'. 107,978.28

Though not thus analyzed upou the argument, the defense may be separated into three.parts: First, as to errors in tbe verdict itself; second, as to interest on the verdict which appears upon the face of the record and was incorporated into the final judgment; third, as to interest upon the judgment from the time of its entry to the present time.

(1) As to the verdict of the jury, it was not a special verdict. The amount, though it included interest, was less than the amount which had been exacted from the claimant and paid into the Treasury. Various elements of demand and defense, under the instructions of the court (and interest was one of them), were submitted to the jury, and these elements crystal-ized in the jury-room in a general verdict of $499,443.68. No juror has been called to explain the verdict, or to show of what elements the total amount consisted; and this court is unable, from an inspection of the record, to say what were tbe items of damages which the jury reduced to the form of a general verdict. The ease was submitted to the jury under the instructions of the Circuit Court; if the instructions were erroneous, they could be, and indeed were, reviewed on exceptions under a writ of error; if the jury disregarded the instructions, the remedy was a motion to set aside the verdict; in the absence of such a motion,'if must be presumed that the jury followed the instructions and committed no error. The inferential facts, derived from the analyses of expert accountants, on which the accounting officers founded some of their deductions, however plausible or probable, are but conjectures, which can not be considered by á court.

(2) As to the alleged error appearing upon the face of the finai judgment, it consists in the allowance of interest from January 1, 1880, to December 1, 1882, at 7 per cent., during a period when the law of New York had reduced the rate of interest to 6 per cent. Act 20th June, 1879 (Laws N. Y., 1879, p. 598).

This court, is of the opinion that the error in the final judgment can not be inquired into collaterally. The mandate of the Supreme Court affirmed the previous judgment with interest, until paid, at the same rate per annum that similar judgments hear in the courts of the State of New YorltP Between the recovery of the judgment so affirmed and the issuing of the mandate, the rate of interest in New York had been reduced, the statute, however, making certain exceptions. In the opinion of the Circuit Court this judgment was one of those exceptions. Upon the correctness of that ruling this court expresses no opinion. The nominal defendant, Collector Bailey,.and the active defendants, the United States, rested content with it; and neither the accounting officers nor this court can sit as an appellate tribunal to modify its terms or correct its errors. Its integrity in all collateral proceedings is indeed vital to the remedy intended by the law and to the maintenance of the plaintiff’s legal rights.

When, on the 1st December, 1882, the plaintiff in the suit against John M. Bailey recovered under the mandate of the Supreme Court, a judgment of $669,341.39, he acquired, as against that defendant, the highest evidence of indebtedness known to the law, and the judgment was to all intents and purposes a vested right. The money for which the judgment was recovered had been paid into the Treasury of the United States; the United States had appeared and defended the action, and on their interposition a certificate of probable cause had been issued, which instantly operated upon the judgment and practically destroyed the debt as against the judgment debtor.

It is impossible to suppose that the law intends to allow an action to be prosecuted against a public officer, an appeal to be taken, a defense to be maintained by the Government through the proper law officers, a judgment to be recovered under the direction of our highest judicial authority, and then the right thus acquired to be immediately taken away by a certificate resting in the discretion of a single judge, upon an issue not tried, by the jury, and allowed by an order from which there is no appeal, unless it likewise intends that the absolute discharge of the agent shall operate as an assumption of the debt by the principal. And it seems to tbe court incontrovertible that, if the law allows the Government to relieve a public officer from liability for acts done in its service, and at the same time to accept the benefits and assume the responsibility of those acts, the responsibility of the one is commensurate with the liability of the other; and the latter is not subject to the scrutiny of any other jurisdiction than that in which it arose.

(3) As to the demand for interest which has accrued on the final judgment, the court is of the opinion that it can not be recovered in this action.

The statute which limits our authority is imperative that—

“ No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest.?’ (Eev. Stat., § 1091.)

In other words, the statute excludes from our jurisdiction interest when it is in the nature of damages, and authorizes a recovery for it only when it is the subject of express agreement. We fully agree with the New York Court of Appeals in O’Brien v. Young (95 N. Y. R., 428), that while a judgment may be treated as a contract for certain purposes, it is not a contract in the sense of a voluntary agreement.

We have had occasion to say, in another case during the previous term, that the remedy given by an action in this court is, in contemplation of law, immediate, and to review the cases where interest has and has not been allowed; and we deem what is there said to be applicable to the present case. (Wightman’s Case, 23 C. Cls. R., 144.)

We do not decide that the judgment against Bailey ceased to bear interest when the United States assumed the responsibility of discharging it; nor do we decide that interest has not accrued and become rightfully and legally due to the claimant, but simply that this court is prohibited from awarding it as damages against the United States.

The judgment of the court is that the claimant recover from the defendant the sum of $107,978.28.

Dayis, J., did not sit in this case and took no part in the decision.  