
    JOHN W. HOBBS, ASSIGNEE OF CAMPBELL K. PECK, v. THE UNITED STATES.
    [No. 12394.
    Decided February 25, 1884.]
    
      On the Facts.
    
    Judgment is for the claimant on some items; against him on others. lie-appeals and the defendants appeal. The judgment in his favor is affirmed; that against him is reversed in part. The new judgment is paid, but interest on the judgment from-which the defendants-appealed is refused. The claimant brings this action to recover it.,
    I.If the defendants appeal from a judgment in favor of a claimant, and! it be affirmed, he will be entitled to interest under Revised Statutes,. $ 1090, notwithstanding that he himself appealed as to certain demands adversely decided.
    II.In the Supreme Court an appeal by either party does not bring up for review the whole ease Nothing is reviewed but that which is adverse to the appellant.
    III. Interest cannot be recovered after the principal has been paid unless there was an express agreement to pay it; but a statute (Rev. Stat.r $ 1090) providing that the government shall pay interest on judgments is as binding as an agreement.
    IV. The Revised Statutes ($ 1093). provide that a claim shall be discharged! by the payment of the judgment and interest; and imply that it will not be discharged unless both judgment and interest be paid.
    Y. It is well settled that this court has jurisdiction of an action to recover an unpaid balance of a judgment.
    VI. Interest on a judgment in favor of a claimant begins to run, under Revised Statutes, § 1091, when a certified copy is presented for payment ; and ceases to run when the mandate of affirmance is issued, or ordered to be issued.
    
      The Reporters' statement of the case:
    This case the claimant brought by the voluntary filing of his-petition. The following are the facts as found by the court:
    I. Campbell K. Peck recovered a judgment against the defendants in the Court of Claims, No. 11832, for $43,113.63. The caséis reported in LI O. Ols. R., 81. Thereafter, to wit, February 17,1879, the following copy of said judgment, certified as required by section 1089 of the Revised Statutes, was pre-rented by tbe claimant to tbe Secretary of tbe Treasury for payment.
    
      11 The court, upon due consideration of the premises, find in favor of the claimant, and do order, adjudge, and decree that the said Campbell K. Peck, claimant, do have and recover ■of and from the United States the sum of forty-three thousand one hundred and thirteen dollars and sixty-three cents <($43,113~^¶)
    He was informed by the First Auditor that the judgment ■could not be paid until after the ninety days allowed for appeals had elapsed.
    II. April 7, 1879, the claimant appealed. The appeal was ■entered upon the records of the Supreme Court as Campbell K. Peck, appellant, v. The United States, No. 789. April 9, 1879, the defendants appealed, and their appeal was entered as United States, appellant, v. Campbell K. Peck, No 788. Pending these appeals the death of Campbell K. Peck was ■suggested, and Helen A. Peck, administratrix, was substituted as claimant.
    The claim upon which the judgment was rendered in the -Court of Claims was made up of five items, as follows :
    1. For wood.................................. $40,980 63
    2. Extra labor............................... 1, 500 00
    -3. Property of claimant appropriated by government ................................... 2,133 00
    4. Damages for unemployed teams.............. 1,890 00
    -5. Damages for not being permitted to cut wood within three miles of Tongue Eiver........ 10,000 00
    The judgment was made up of the first and third items. ■Claimant appealed because of the disallowance of the balance.
    ITT. The cross appeals were heard in the Supreme Court, and March 22,1880, the judgment rendered thereon was announced. April 22, 1880, the following mandate of the Supreme Court in the case was transmitted to and filed in the Court of Claims:
    “ It is now here ordered and adjudged by this court that the judgment of the said Court of Claims in this cause be, and the same is hereby, affirmed for the full amount of the award made to the claimant, and that an additional amount of $2,660 should be allowed for the two items of extra expense referred to in the -opinion of this court.”
    May 10, 1880, judgment was'entered in the Court of Claims ■upon this mandate in manner and form as appears in finding jy.
    
      IY. May 10, 1880, upon motion in the Court of Claims, John W. Hobbs, assignee in bankruptcy of Campbell K. Peck, was-substituted as claimant (see. 15 C. Cls. E., 364).
    May 12,1880, the following copy of said judgment was furnished to the claimant, and July 12, 1880, the same was presented to the Secretary of the Treasury for payment:
    “ The Supreme Court of the United States having affirmed the judgment rendered by this court in this cause in favor of Campbell K. Peck, on the 10th day of February, 1879, for forty-three thousand one hundred and thirteen -£0%- dollars, and having also ordered this court to allow the claimant the additional sum of two thousand six hundred and sixty dollars; it is therefore ordered, adjudged, and decreedthatthesaid JohnW.Hobbs, assignee in bankruptcy of said Campbell K. Peck, have and recover of and from the United States the sum of two thousand six hundred and sixty dollars, in addition to that adjudged and decreed on the said 10th day of February, 1879. And it is further ordered that the transcript of this judgment for presentation to the Secretary of the Treasury for payment be delivered to Sanborn and King, attorneys of record for the claimant.”
    Judgment of Court of Claims....................$43,113 63
    Additional by Supreme Court.................... 2,660 00
    45, 773 63.
    Y. July 12, 1880, the claimant presented the copy of the judgment shown in finding IY to the Secretary of the Treasury for payment, and it was referred as follows:
    “ Treas. Dept., July 12,1880.
    “ Respectfully referred to the First Auditor for examination and settlement; payable from appropriation for payment of judgments of the Court of Claims. Deficiency Act, approved June 16, 1880.
    “J. K. Upton,
    
      11 Assistant Secretary.”
    On the same day the claimant’s attorney requested the First Auditor to include interest upon the original judgment in stating the account. He also made the same request to the chief of division in which the account was stated. He was informed by both these officers that no interest could be paid,, because there was no appropriation for that purpose; that interest had not been included in the estimate sent to Congress, and no appropriation therefor had been made.
    
      VI. July 13, 1880, a Treasury warrant for an amount equal to the face of the judgment was given to the claimant’s attorneys and their receipt therefor taken as follows:
    “ Treasury Department.
    “ To the Treasurer of the United States, greeting:
    
    “ Pay to John W. Hobbs, assignee in bankruptcy of Campbell K. Peck,- Sanborn and King, att’ys of record, * * *■ forty-five thousand seven hundred and seventy-three dollars and sixty-three cents, due on settlement, pursuant to a certificate of the First Comptroller, No. 220527, dated the 13 day of' July, 1880, recorded by the register. For so doing this shall be your warrant.
    “Given under my hand and the seal of the Treasury Department this 13 day of July, in the year of our Lord one thousand eight hundred and eighty, and of Independence the on& hundred fifth.
    “ J. K. Upton,
    
      “Assistant Secretary.
    
    “ Office of the Treasurer of the United States.
    “Deceived for this warrant the following drafts:
    No. 10672 on New York......................... 35, 773 63
    No. 10673 on New York......,................. 10,000
    45,773 63
    “Sanborn <& King,
    
      “Atfys.
    
    “ July 13,1880.’’
    These drafts were duly paid.
    
      Mr. James Ragerman for the claimant.
    
      Mr. F. R. Howe (with whom was the Assistant Attorney-General) for the defendants:
    1. Where a debtor is prevented by law from the payment of the debt, he is not chargeable with interest. (Branthwaite v. Halsey, 9 N. J. L. (4 Hals.), 3; Stevens v. Barringer, 13 Wend. (N. Y.), 639; Irwin v. Pittsburgh, ébe., R. R. Co., 43 Pa. St., 488.)
    2. An order granting a new trial in this court under section 1088, vacates the judgment, and, if an appeal is pending, it will operate to dismiss the appeal. (United States v. Ayres, 9 Wall., 608; United States v. Yowng, 94 U. S., 258.)
    
      Claimant here holds that the “judgment appealed from”in this case .was in favor of the claimant. He must do so to maintain any case under this law. But how could this be so, when the claimant himself appealed. If the judgment was in his favor why did he appeal? By his appeal'he put it out of the power of the defendants to permit the judgment to become final, and so payablé by the Secretary of the Treasury. By his •act of appeal he is estopped from maintaining that the judgment was “ in favor of the claimant.” He cannot occupy inconsistent positions. He had to determine whether he would pursue his rights in the appellate court or stand content with the award of this tribunal. He is bound by his selection, (Morris v. jEixford, 18 N. Y., 552; Bodermund- v. Ciarle, 46 N. Y., 354; Sauges v. Wood, 3 Johns. Ch., 416; Littlefield v. Brown, 1 Wend., 398; same on appeal, 11 id., 467-470.)
    3. A judgment is one and indivisible. When it is acted upon by an appellate tribunal, three things may be done with it: It may be affirmed; it may be reversed; or it may be modified ■and amended.
    It is apparent that in the case at bar the first course was not pursued by the Supreme Court. The judgment was not affirmed, because error was found in it. It was not reversed in terms, because the error was found to be such as the court could correct without reversal. It was therefore amended and sent down for execution in its modified form. This has been done. The judgment of this court, as modified by the Supreme Court, has been paid.
    4. This is an action to recover interest. Interest has always been treated as incident to or arising from a debt. It has never been considered as a debt by itself. Where suits have been brought to recover interest after the debt had been paid, the courts have held that no action would lie. (Dixon v. Parles, 1 Usp., 110; Tillotson v. Preston, 3 Johns., 229; Johnson v. Brennan, 5 Johns., 267; Succession of Andreas Anderson, 12 La. An., 95.)
    The claimant received the amount of his judgment debt without interest, and filed no protest with his receipt. • If he had been refused interest, he should have applied to this court for •a transcript showing what amount of interest was due him. He can maintain no action for interest now. (Sweeney v. United .States, 17 Wall., 75; Clyde v. United States, 13 Wall., 35.)
   Sóoeield, J.,

delivered the opinion of the court:

This suit is brought to recover an unpaid balance of a judgment rendered in this court February 10, 1879, for $43,113.63, No. 11832, in favor of Campbell K. Peck, and reported in 14 C. Cls. R., 84. The amount now claimed to be due is a sum equal to the interest at the rate of 5 per centum upon said judgment from February 17, 1879, to July 12, 1880.

The facts found by the court may be abbreviated as follows :

February 17, 1879, a copy of the judgment, certified as required by section 1089 of the Revised Statutes, was presented by the claimant to the Secretary of the Treasury for payment. He was informed that judgments of the Court of Claims would not be paid until the ninety days allowed for appeals had elapsed.

April 7, 1879, the claimant appealed. The appeal was docketed in the Supreme Court as Campbell K. Peck, appellant, v. The United States, No. 798.

April 9, 1879, the defendants appealed. Their appeal was docketed as The United States, appellant, v. Campbell K. Peck, No. 788.

The cross-appeals afterwards came on to be heard, and the decision of the court thereon was announced March 22, 1880.

April 22, 1880, the following mandate from the Supreme Court was received by the Court of Claims, and judgment was entered by the latter court in accordance therewith :

It is now here ordered and adjudged by this court that the judgment of the said Court of Claims in this cause be, and the same is hereby, affirmed for the full amount of the award made to the claimant, and that an additional amount of $2,660 should be allowed for the two items of extra expense referred to in the opinion of this court.” .

May 10, 1880, upon motion to the court, John W. Hobbs, as-signee in bankruptcy of Campbell K. Peck, was substituted for the claimant. (15 C. Cls. R., 364.)

May 12, 1880, a duly certified.copy of this proceeding and of the judgment entered upon the mandate of the Supreme Court, amounting to $45,773.63, was furnished to the claimant, and July 12, 1880, the same was presented to the Secretary of the Treasury for payment.

July 13, 1880, a warrant was drawn in favor of the claimant for $45,773.63, which, on the same day, was paid to and receipted by his attorneys.

The claim for interest is based upon the following section of the Revised Statutes:

“ Sec. 1090. In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of ñve per centum shall be allowed from the date of its presentation to the Secretary of the Treasury for payment as aforesaid, but no interest shall be allowed subsequent to the affirmance, unless presented for payment to the Secretary of the Treasury as aforesaid.”

All the requirements of this section are found in the above statement of facts. A judgment was rendered .by the Court of Claims in favor of the claimant; a copy .thereof duly authenticated was presented to the Secretary of the Treasury; the defendants appealed from the judgment, and the same was affirmed by the Supreme Court. By these facts the case is brought within the letter of the statute.

There would have been no question about interest had not an appeal been also taken by the claimant. This fact, it is claimed, takes the case out of the spirit and purpose of the statute. The government does not pay interest, it is argued, because it is supposed to pay its debts when due and payment is demanded. Unliquidated claims are not considered due until the liability of the government is authoritatively determined. After such determination, a claimant who voluntarily puts himself in a position from which he cannot legally demand payment is no more entitled to interest than the holder of a government bond who neglects to call for his money when it is due. Assuming this argument to be sound, the conclusion that the claimant must necessarily be deprived of interest because he took an appeal is based upon a misconception of the practice in the Supreme Court relative to appeals.

In the State courts, so far as we know, an appeal by either party brings up for review the whole case. Not so in the Supreme Court of the United States. There nothing is reviewed but the complaints of the appellant. The party not appealing is considered as content with the action of the court below. In the case of the United States v. Hickey (17 Wall., 9; 8 C. Cls. R., 114) the court says:

“ Much the greater part of the time consumed in the argument of this case was bestowed upon the two items which were rejected by the Court of Claims. This was quite unnecessary. By not appealing the claimant has declared himself to be content with the disposition of the case by the Court of Claims. The appeal [of the United States] brings up only the claim allowed. The rejected items, therefore, will receive no consideration, except so far as it may be necessary for a proper understanding of the items allowed.”

According to this practice, the claimant’s judgment was not disturbed by his own appeal. His petition set forth five items of claim. The court below allowed two and rejected three of them. The purpose of his appeal was to reverse only that portion of the decision adverse to him. The judgment in his favor was put in issue only by the appeal of the defendants. In the Supreme Court the two appeals were separately docketed and given different numbers, and although only one mandate was sent to this court, it was in two distinct parts, applicable to the two appeals. On the appeal by the claimant an additional amount of $2,660 for two of the items rejected by this court was allowed, and on the defendants’ appeal the judgment below was affirmed. After considering and overruling several objections to the judgment, the opinion of the court concludes as follows:

“As to the remaining points involved in the case, it is only necessary to say that our judgment concurs with that of the Court of Claims except as to two items. We think that the claimant should have been allowed his extra expense in constructing new cabins and quarters for his men for cutting wood at a greater distance from the station, after having constructed sufficient quarters within the limits allowed by the terms of his contract. This extra expense was $1,300, and was caused by the order forbidding him to cut wood except at a distance of from two and a half to five miles from the station, whereas the contract allowed him to cut at any point outside of half a mile.
“ The other item referred to is the expense of keeping his teams unemployed for a space of ten days while waiting for the arrival of the post commander, after being forbidden to cut wood within the limits of the military reservation. He had reason to expect a modification of the order; and it was modified so as to allow him to cut on the reservation at the distance of from two and a half to five miles from the station. The amount of this expense is found to have been $1,360. This, we think, should have been allowed him.”

In this view of the case, the defendants and not the claimant were the cause of the delay.and the judgment'is thus brought within the spirit and purpose of the statute allowing interest, as well as within its letter.

Another objection is interposed by the defendants. July 13, 1880, the claimant was paid $45,773.63, a sum just equal to the face of the final judgment. He demanded the whole sum due, including interest, but when he was informed that the appropriation was short, he took the amount given. Neither the Treasury warrant nor the receipt stated it to be in full. This action on the part of the claimant, it is said, amounted to a release of the balance due. We do not think so. Itistruethat it has been held in a certain class of cases that the payment of principal, as such, works a discharge of the interest. These cases, however, do not settle an arbitrary rule, whereby interest is in all cases released contrary to the agreement or intention of the parties. In Wait on “Actions and Defenses” (vol. 4, page 129) the rule is thus laid down: “An action will not lie to recover interest after the principal has been paid unless there was an express contract to pay interest.” In this case the defendants, by their own statute, agreed to pay interest, and there can be no better contract than that. We are not to presume that the law will sanction an evasion of its own honest provision through inequitable and technical rules of practice. In Lovett’s Case (94 U. S. R., 53) the Supreme Court said, “Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration.”

When payment of the principal is accepted and no account is made of interest, it may well be presumed that it was not the intention to exact it. But such presumption is open to rebuttal. To this end, all thé conversation and acts of the parties and of .the circumstances showing their intention ought to be considered. If a party makes a payment upon his note equal to its face and has ‘the same credited upon it, and then leave the note with the creditor, it would scarcely he held to release the accumulated interest. Such payments apply first upon the interest, and then upon the principal. There are no facts in this case tending to show an intention on the part of the claimant to release the interest which the defendants, by statutory provision, were required to pay. On the contrary, he demanded it. Nor was there any such requirement nor even request on the part of the Treasury officials. They gave him a good reason for not paying the whole amount then, and he accepted part of the claim because the whole would, at that time, exceed the limits of the appropriation. A receipt, not in full, but for the amount paid, was offered and accepted.

As bearing upon the same question section 1092 of the Revised Statutes should also be considered. It is as follows:

“Sec. 1092. The payment of the amount due by any judgment of the Court of Claims and of any interest thereon allowed by law, as hereinbefore provided, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy.”

Although this section only provides that the original claim shall be discharged by the payment of the judgment and interest, it also implies that the claim would not be discharged unless both judgment and interest were paid.

We therefore hold'that none of the amount due the claimant is forfeited because he accepted the only amount that the accounting officers, by reason of a meager appropriation, were at that time able to pay.

In the case of United States v. O’Grady (22 Wall., 641) it was held that this court has jurisdiction of a claim based upon an unpaid balance of a judgment already rendered.

Having determined that the claimant is entitled to recover interest upon his judgment, we come to inquire when the interest began and when it ceased. That it began to run February 17,1879, whén the certified copy of judgment was presented to the Secretary, can scarcely be doubted. That seems to be the plain provision of section 1090. When it ended is not so clear. The judgment upon the mandate was entered April 22, 1880, but a certified copy thereof was not presented to the Secretary until July 12,1880. The last lines of section 1090 provide that “no interest shall be allowed subsequent to the affirmance unless presented for payment to the Secretary of the Treasury as aforesaid.” This seems to require that a new copy of the judgment, showing what disposition of the case had been made in the Supreme Court, and certified, as required in section 1089, should be presented for payment to the Secretary, and if not so presented, interest should not be allowed after the date of affirmance.

What, then, within the meaning of the statute, was the date of affirmance?

The decision of the Supreme Court was announced March 22, 1880, but the mandate to the Court of Claims was not ordered until a month later. Mandates are not, of right, demandable by the parties, but are issued at the discretion of the court, and, as a rule, not until the end of the term. Thus time is taken for the correction of possible errors by the court itself.

The statute requires the copy of the judgment to be certified by the Court of Claims. It is plain, therefore, that no action in the premises could have been taken before April 22,1880. We are of the opinion, therefore, that the claimant was entitled to interest down to that date and not after.

Interest upon the original judgment of $43,113.63 from February 17,1879, to April 22, 1880, would amount to $2,544.90, for which sum judgment will be entered in favor of the claimant.  