
    James R. Beckwith v. the United States.
    
      On the Proofs.
    
    
      A United States circuit court allows the district attorney two per centum upon moneys realized by the government in a suit which that court regards as arising under the revenue laws, it being on a collector's bond for money collected by him under the revenue laws. The district attorney also def ends an agent of the Treasury by direction of the Secretary. The judge of the cowi't certifies $1,000 as Ms compensation for defending an officer of the revenue.
    
    I. Words and x>hrases are used in statutes with, different signification and different shades of meaning in different connections. Thus the word “revenue” has different meanings in the Constitution, in statutes relating to crimes, and in statutes ating to revenue officers.
    
      II. The meaning of Congress in tiie nse of the words “any suit or proceeding arising under the revenue laxos," in the Revised Statutes, § 825, must be determined as they appear in that section, and not as similar words may he employed elsewhere in other connections.
    III. A suit against a surety upon a collector’s "bond to recover moneys duo for customs duties, not directly from the importer, hut indirectly from the revenue officer to whom they were paid, is a suit “axising xmder the x-evemie laxos" within the meaning of the statute; and the district attorney prosecuting such a suit is entitled to the two per centum on the recovery which the statute gives.
    IY. Whether the decree of a circuit court, which,, among other things, awards the district attorney who prosecuted the suit two per centum of the recovery, under Rev. Stat., 5 825, is not a final judgment of a court of competent jurisdiction, queere
    
    V.Where a district attorney prosecutes a suit arising under the revenue laws to judgment, and the judgment is subsequently satisfied pursuant ^to the Act 3d Max-ch, 1875 (Supplement R. S., p. 185), by the Secretary of the Treasury, deducting the amount thereof from a judgment recovered against the United States in another action, the money is “ collected or realized" within the meaning of Rev. Stat., § 825, and the district attorney is entitled to his per centum.
    VI.Whether when a district attorney appears by direction of the Secretary of the Treasury on behalf of a special agent of the Treasury acting and appointed under the Abandoned or captured px’operty Act (12 Stat. L., 820), he is entitled to the compensation prescribed by Rev. Stat., § 827; and whether the special Treasury agent is an “officer of the reveime" within the meaning of that section, queere?
    
    VII.- Where the Secretary of the Treasury directed the employment of a district attorney to defend a cotton agent as an officer of the revenue, and the district attorney did so, and the judge of the circuit court where the case was tried so construed the employment and certified the service, and the Secretary declined to pay it solely upon the ground that the proper appropriation for paying for such services was exhausted, the right of the district attorney to the compensation cannot be re-examined in this court.
    
      The Reporters' statement of tbe case:
    Tbe following are tbe facts of this case as found by tbe court:
    I. Tbe claimant was appointed attorney of tbe United States for tbe district of Louisiana on tbe 9tb day of December, 1870, and beld his office from that date up to March 2,1877, when his successor was appointed.
    II. June 20,1869, suit was instituted by the United States in the circuit court of the United States, fifth circuit and district of Louisiana, against Mrs. B. E. G-aussen, executrix of will of John K. Elgee, by petition, of which the following is a copy:
    “ PETITION.
    “The United States ^ “Mes. B. E. Gaussen, executrix of will ^0, 5922‘ of Jno. K. Elgee. J
    “To the hon. the judges of the circuit court of the United States for the fifth circuit and district of Louisiana:
    “The petition of the United States with respect shows that Mrs. Bessie Elgee, of Louisiana, widow of the late-Scott, and now wife of Edmond J. Gaussen, is executrix under the will of her father, John Kingsbury Elgee, deceased, late of the city of New Orleans, duly recognized and appointed under the decree of the second district court of New Orleans, La., and that she is represented in her said capacity of executrix by her duly appointed agent and attorney in fact, Samuel Delgado, of New Orleans, La., as per acts passed before Theo. Starke, notary public, of said city, viz, power of attorney by her to Oarl Kohn on the 11th J anuary, I860; ratification of the same, her and her husband, E. J. Gaussen, 29th May, 1807; substitution of Samuel Delgado by Oarl Kohn on 9th May, 1867; and that the said Mrs. Bessie El-gee Gaussen, in her said representative capacity of executrix of the last will and testament of the said Jno. K. Elgee as aforesaid, is justly indebted to petitioners in the sum of forty-one thousand three hundred and seventy-six dollars and sixty-four cents, and interest as hereinafter claimed, for this: That heretofore, to wit, on or about the 0th day of July, 1844, Thomas Barrett, of New Orleans, La., now deceased, was duly appointed by the President of the United States to the office of the collector of the customs for the district of New Orleans, in the State of Louisiana, and on the said Oth July, 1844, the said Barrett did make, sign, and deliver to petitioners a bond, as required by law, in favor of petitioners, in the penal sum of one hundred and twenty thousand dollars, conditional for the faithful performance by him of all the duties of said office, as will' more fully appear by the duly certified copy of said bond hereto annexed as part of this petition.
    “And the said Jno. K. Elgee and Francois Delery, Sylvian Peyroux, Lucien Herrmann, and Bernard Cautrelly did sign the said bond, and did therein and thereby bind themselves, their heirs, executors, administrators, &c., jointly and severally, to the amount of the penalty of the said bond, as sureties for the faithful performance by the said Barrett of all the duties of his said office.
    “Petitioners aver that the said Thomas Barrett altogether failed and neglected faithfully to perform all the duties of the said office according to law, and particularly in this, that he failed and neglected faithfully to accouht for and pay over to petitioners the money by him received for petitioners in his official capacity aforesaid.
    “Petitioners aver that, on the 12 October, 1845, the accounts of said Barrett, as collector as aforesaid, were adjusted by the proper officers of the Treasury of the United States, and a balance of forty-one thousand three hundred and seventy-six dollars ($41,376.64) was found to be due and owing by said Barrett to petitioners, all of which will more fully appear by the certified statement of said accounts, annexed as part hereof. The said balance is still unpaid, although it has been duly and amicably demanded.
    “The premises considered, petitioners pray that the said Mrs. Bessie Elgee G-aussen, executrix of the will of John K. Elgee, through her attorney in fact, Sam’l Delgado, may be cited to answer this petition, and, after due proceedings had, that petitioners may have and recover against the said Mrs. Bessie El-gee G-aussen, executrix of the will of John K. Elgee, deceased, for the said sum of forty-one thousand three hundred and seventy-six dollars and sixty-four cents, with interest thereon at the rate of six per cent, per annum from 12th October, A. D. 1845, till paid, and costs of suit.
    “And they pray for general relief.
    “P. H. MORGAN,
    “ U. S. Affiy.
    
    “BOND ANNEXED TO PETITION.
    .“Know all men by these presents that we, Thomas Barrett, as principal, and Francois Delery, Jno. K. Elgee, Silvain Pey-roux, Lucien Herrmann, and Michel Bernard Gautrelly, as sureties, are held and firmly bound unto the United States of America in the full and just sum of one hundred and twenty thousand dollars, money of the United States, to which payment, well and truly to be made, we bind ourselves, jointly and severally, our joint and several heirs, executors, and administrators, firmly by these presents, sealed with our seals and dated this sixth day of July, in the year one thousand eight hundred and forty-four.
    “ The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the same Thomas Barrett to the office of collector or tbe customs for tbe district of New Orleans, in tbe State of Louisiana:
    “Now, therefore, if tbe said Tbomas Barrett bas truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office, according to law, then the above obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue.
    “Tho. Barrett. l. s.
    “Francois Delery. l. s.'
    “Jno. K Elgee. l. s.’
    “Silvain Peyroux. l. s.'
    “LITCIEN HERMANN. L. S.'
    “Michel Bernard Cautrelly. L. S.’
    ‘ ‘Signed, sealed, and delivered in the presence of—
    [Omitting names of witnesses.]
    III. The claimant, as such district attorney, appeared for the United States and conducted said suit to final judgment, and judgment was rendered therein, in said court, May 1,1875, as' follows:
    “Considering the law and the verdict of the jury herein, and consideringfurtherthatalthough thisaction was brought against the succession of the said John K. Elgee, deceased, represented by the said Mrs. Bessie E. Gaussen, executrix of the last will and testament of the said John Kingsbury Elgee, yet one E. T. Parker, in his capacity of public administrator of the State of Louisiana for the jiarish of Orleans, has appeared in this cause, and, by written suggestions, averred himself in his said capacity to lawfully represent said succession of the said John Kings-bury Elgee, deceased, and has in his said capacity caused himself to be also made a party defendant in this cause, as appears by the record herein:
    “Now, therefore, on motion of James B. Beckwith, U. S. attorney, it is by the court ordered, adjudged, and decreed that the said plaintiff, the United States of America, do have and recover of and against the said succession of the said John Kingsbury Elgee and the said Mrs. Bessie E. Gaussen, as executrix of the last will and testament of the said John Kings-bury Elgee, as well as of and against the said E. T. Parker, in his said capacity of public administrator, representing the said succession as aforesaid, the full sum of thirty-six thousand eight hundred and fifteen dollars and eighty-six cents, with interest on said sum from the twelfth day of October, A. D. eighteen hundred and forty-five, at the rate of six per centum per annum, until the same shall be paid, as damages, besides all of the costs of this suit to be taxed.
    “It is further ordered that this judgment be paid in the course of administration of tbe aforesaid estate, or that tbe said plaintiff have execution thereof against tbe property belonging to tbe said succession of the said J obn Kingsbury Elgee, deceased.”
    Which judgment was affirmed by tbe Supreme Court. (97 U. S. B., 581.)
    IY. On tbe 2d day of January, 1879, tbe claimant’s compensation for services in said suit was taxed and allowed in said circuit. court by tbe district judge, and bis order thereon was entered as follows:
    “New Orleans, Thursday the 2d day of January, 1879.
    “Court met pursuant to adjournment.
    “Present, tbe Hon. E. C. Billings, district judge.'
    “In tbe matter of J. B. Beckwith, late D. S. attorney.
    “Whereas the account of J. B. Beckwith, late D. S. attorney for district of Louisiana, for two per centum (under section 825 of B. S.) upon tbe amount of tbe judgment obtained by him, on 1st May, 1875, in bis capacity aforesaid, in favor of tbe United States, in the" case of tbe United Slates vs. Mrs. B. B. Gaussen ex’x, cfee., & al., No. 5922 of the docket of this court, for tbe sum of $36,815.86, with six per cent, per annum thereon, Born 12th October, 1845, until paid, and costs of suit, amounting to $2,194.22, was this day rendered to tbe court in tbe presence of J. W. Gurley, ass’t U. S. attorney, and tbe court being satisfied from tbe affidavit of tbe said J. B. Beckwith, and tbe copy of tbe said judgment attached to tbe said account, that tbe said cause was conducted by him, and that tbe services charged for were actually and necessarily performed by him while U. S. attorney,
    It is ordered that tbe said account for said sum of $2,194.22 be, and tbe sum is, approved, and that this order be entered of record.”
    Y. Tbe amount of tbe said, judgment, including interest ($105,007.59), in said suit, in favor of tbe United States, conducted by tbe claimant as aforesaid, was collected and realized by tbe defendants in tbe following manner:
    On the 17th of May, 1875, a judgment was entered .in tbe United States Court of Claims, in a suit brought against the United States by tbe dative testamentary executor of tbe aforesaid John K. Elgee, entitled “Edward Thomas Parker, dative testamentary executor of John K. Elgee, deceased,” whereby it was ordered, adjudged, and decreed that tbe said Edward Thomas Parker, dative testamentary executor of tbe aforesaid John. K. Elgee, should have and recover from the United States the sum of three hundred and sixty-six thousand one hundred and seventy dollars and eighty-three cents, found in the Treasury, and being the net proceeds of the sale of five hundred and seventy-two bales of cotton.
    Under the provisions of the act of Congress approved March 3, 1875, the Secretary of the Treasury withheld $105,007.59 from the amount adjudged the estate of the said John K. Elgee in the Court of Claims, before mentioned, and the Secretary thereby collected and realized for the United States the full amount of the judgment rendered in their favor Mayl, 1875, in the circuit court of the United States for Louisiana in the aforesaid suit of the United States v. Gaussen, executrix, éce.
    
    YI. A writ was brought in the circuit court of the district of Louisiana by D. Cortinas against C. Bullitt and O. H. Bur-bridge; the said Burbridge being a duly appointed special agent of the Treasury Department under the act of March 12, 1863, ch. 120, and the act of July 2, 1864, ch. 225. Said suit was founded upon acts done by said Burbridge in the performance of his official duties as such special agent.
    VII. On the 18th of January, 1870, the claimant was directed by the Secretary of the Treasury, by the following letter, to defend said Burbridge in said suit:
    “DEPARTMENT OP JHSTICE,
    “Oppice oe the Solicitor op the Treasurt,
    
      “ Washington, D. O., January 18í7¿, 1870.
    “ Sir : The Secretary has received and referred to me a letter from Messrs. Case & Bouse, enquiring whether they should consider themselves retained by the government to defend Bur-bridge in the suit pending in the U. S. circuit court for Louisiana, against himself and C. Bullitt, brought by D. Cortinas, and in reply I have advised them that the defense of Mr. Burbridge would be placed in your charge without associate counsel. I have, therefore, to request that you will appear for the defendant Burbridge and do what may appear to you most advisable on the trial in conducting his defense.
    “Very respectfully,
    “E. O. Banpield,
    
      (l Solicitor of the Treasury.
    
    “ J. B. Beckwith, Esq.,
    
      UU. S. Att’y, New Orleans, LaP
    
    
      The claimant appeared for said Burbridge, and conducted the defense, of said suit against him, and on the 1st of April, 1875, the judge of said court entered of record therein the following taxation and allowance of the claimant’s fee for his services, at the sum of one thousand dollars, which he certified to be a proper compensation, as follows:
    “Circuit court of the United States, fifth circuit and district of Louisiana, November term, A. D. 1874.
    “New Orleans, Thursday, 1st day of April, 1875.”
    “Court met pursuant to adjournment.
    “Present, the honorable W. B. Woods, circuit judge.
    “D. Cortinas ~j “C. Bullitt, O. H. Burbridge, et al., [ ^0, WARRANTORS. j
    “ It appearing to the court that the above-named suit was instituted on the 7th April, 1866, and that O. H. Burbridge was called in warranty therein and judgment asked against him by reason of acts and proceedings had by him as special agent of the Treasury Department of the United States, under authority and color of the act of Congress approved 12th of March, 1863, entitled ‘An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts of the United States,’ and that J. It. Beckwith, by direction of the Solicitor of the Treasury, of date 18th January, 1871, took charge of the defense of the said Burbridge, and conducted the same to the final termination of the suit in this court, is is ordered that the sum of one thousand dollars be certified of record as a reasonable and proper compensation for services rendered by him on behalf of said defendant.
    “W. B. Woods, Judge”
    
    YIII. The claimant presented to the Treasury Department his claim for services, as certified to by Judge Woods, and the following official correspondence took place:
    “DEPARTMENT OE JUSTICE,
    “Office of the Solicitor of the Treasury,
    “ Washington, D. G., June 1th, 1875.
    “ Sir : I have the honor to acknowledge the receipt of your letter of the 7th of April last, enclosing the bill, with accompanying papers, of J. R. Beckwith, U. S. attorney at New Orleans, in the sum of $1,000.00, for services in the defence of O. H. Bur-bridge, in the case of D. Cortinas vs. C. Bullitt, and requesting my opinion as to what amount, if any, should be allowed Mr. Beckwith.
    “The bill is accompanied by the certificate of Judge Woods and two members of the New Orleans bar as to its reasonable character, and I think may properly be allowed.
    “The papers are returned herewith.
    “Very respectfully,
    “J. H. Robinson,
    “ Acting Solicitor of the Treasury.
    
    “Hon. B. H. Bristow,
    “ Secretary of the Treasury.”
    
    “Treasury DepartMent,
    “ Washington, D. 0., July 15, 1875.
    “Sir : Your letter of April 1st, 1875, enclosing account of $1,000 for professional services in the suit of I). Cortinas vs. O. H. Burbridge, with the certificate of Judge Woods, was duly received, since which I have yours of July 2nd, calling my attention to the account.
    “ I am obliged to inform you that before the receipt of your bill the appropriation at the command of this department applicable to its payment had been exhausted, and there is at present no power to discharge the account. It must await a new appropriation.
    “Respectfully,
    “Chas. F. Conant,
    
      “Ass’t Secretary.
    
    “J. R. Beckwith, Esq.,
    “ U. S. District Attorney, Dew Orleans, La.”
    
    IX. Neither of said claims has been paid.
    
      Mr. Thomas J. Durant for the claimant:
    The general principle of our national law is that each party pays his own attorney. (Oelrichs v. Sjpain, 15 Wall., 211-230; Hattenstein v. Dynham, 10 Otto, 491; King v. United. States, 9 Otto, 229.)
    The Revised Statutes, § 825, is the codification or digest of the act of March 3, 1863, section 11. (12 Stat. L., 741.) This section alludes to the act of February 26,1853 (10 Stat. L., 162), on the same subject-matter, and declares, “it shall not apply to such allowances.” Therefore, all this legislation leaves the section 825 as it stands in the Digest, and it governs this case.
    It is not denied, but expressly admitted, that the G-aussen
    
      Case was one of “ any suit arising under the revenue laws”; but "that the terms — “ under the revenue laws” — do not refer to all the revenue laws of the United States, but only to that branch of them qualified by the omitted word “internal.”
    The legislator has provided for all suits under all revenue laws, so far forth as district attorney’s fees are involved. The distinction is marked between internal-revenue laws and external, or those arising from foreign commerce. But there is nothing in the language of the statute showing any sign that this distinction was, at the time of the enactment, or re-enactment, in the mind of either legislator or collator. The judiciary are expressly forbidden to distinguish where the law itself does not distinguish; “and certainly lex non distinguit, but where ■omnia membra divülentia are to be found out and proved by the law itself.” (Galvin’s Case, 7 Bep., 10; Faw' v. Marsteller, 2 Cranch, 10.
    To our minds, the reference in the original statute to the old law, and repealing it pro tanto, manifests clearly the generality ■of the legislation as to all suits under all the revenue laws.
    
      Mr. George G. Wing (with whom was the Assistant Attorney General) for the defendant:
    The suit against Gaussen was upon a bond, and thus arose under a liability which no special laws, revenue or otherwise, could impose upon him, but which he himself had assumed, and which was created and determined by the general principles of •contract.
    It was the contract which gave the right to sue Gaussen, and it is too remote to hold that a suit upon it arises under the law which made the occasion for the contract. The laws creating the office, specifying the bond, or which may happen to come under examination in proving a breach, only come in incidentally, and because the bond itself admits them under the general reference “ according to law.” (See opinions of Attorney-General, September 25 and October 18,1878, applied by the Secretary of the Treasury to this claim.)
    The breach alleged and proved was not of a revenue law, but of a law applicable to every officer, revenue or otherwise, having public money.
    Nor was any law which could enter directly or indirectly into tbe suit a “revenue law” as meant in legislation. Tbe only laws wbieb refer even remotely to tbe revenue, and wbieb might be claimed to belong to tbe case, are those creating tbe office of collector, and which contemplated tbe bond. But these are not revenue laws. (United States v. Mayo, 1 Gall., 397; Peyton v. Bliss, 1 Wool, 170,173; The Nashville, 4 Biss., 18S; United! States v. Coolce, 17 Wall., 168.)
    . Mr. Justice Swayne recites tbe test, and tbe reasons therefor,, or a revenue law. “The Constitution of tbe United States, article 1, section 7, provides that‘ all bills for raising revenue shall originate in the House of Representatives.’ ”
    “Tbe construction of this limitation is practically well settled by tbe uniform action of Congress. Ascending to that construction ‘it has been confined to bills to levy taxes in tbe strict sense of tbe words, and has not been understood to extend to bills for other purposes which incidentally create revenue.’” (Story on the Const., § 880; United States v. Morton, 91 U. S. R., 569.)
    Tbe money was collected and realized by tbe Secretary of tbe Treasury in pursuance of bis duty under tbe act of March 3, 1875, “to provide for deducting any debt due tbe United States from any judgment recovered against tbe United States by such debtor.” (18 Stat. L., 481.)
   Richardson, J.,

delivered tbe opinion of tbe court:

Two causes of action are set forth in tbe claimant’s petition.

First, be seeks to recover tbe sum of $2,100. L5. This sum was taxed and allowed to bimbytbe circuit conrtof tbe United States for tbe fifth circuit and district of Louisiana, under the provisions of section 825 of tbe Revised Statutes, as bis commission of two per cent, upon moneys realized by tbe government in a suit arising, as be alleges, under tbe revenue laws, and conducted by him, and in which tbe United States was a party. Tbe section is as follows :

Sec. 825. There shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under tbe revenue laws, and conducted by him, in which tbe United States is a party, which shall be in lieu of all costs and fees in such proceeding.”

That suit arose and was prosecuted to final judgment, and tbe judgment was satisfied and tbe money recovered in this manner.

In tbe year 1844 Thomas Barrett was appointed collector of the customs for the district of New Orleans, in the State of Louisiana, and as such gave the bond required by law for the .faithful discharge of the duties of his office, with. John K. Elgee •and others as sureties.

Upon the settlement of the collector’s accounts in October, 1845, a balance was found against him of more that $40,000, due to the United States for money collected by him from customs duties.

This balance had remained unpaid nearly twenty-five years; and Barrett and Elgee had both died, when a suit was instituted against the estate of Elgee, in the hands of his executrix, to recover the amount, with interest.

The claimant was United States district attorney, and as such .'he appeared and conducted the suit in behalf of the United •States. It was shaiply controverted, was twice tried in the •Supreme Court on writs of error (19 Wall., 198; 97 U. S. R., 584), and finally, in May, 1875, resulted in a judgment in favor of the United States for the whole amount claimed, with interest.

Just at that time the executrix of Elgee recovered judgment in the Court of Claims in favor of his estate for more than $360,000 against the United States under the captured and abandoned property act of March 12, 1863.

The Secretary of the Treasury, availing himself of the act then recently passed, “ to provide for deducting any debt due the United States from any judgment recovered against the United States by such debtor” (act of 1875, March 3, ch. 149), withheld payment of so much of the judgment of the Court of Claims as was sufficient to satisfy the judgment that had been recovered in favor of the United States against Elgee as Barrett’s surety, amounting, with interest, to $105,007.59, and thus realized the whole amount for which a recovery was had in the suit conducted by the claimant.

The counsel in behalf of the government urges, as a defense in this court, that the suit upon the bond of the collector against one of his sureties did not arise under the revenue laws, and that therefore the claimant is not entitled to a commission on the sum realized. He refers to discussions upon the meaning of the words “bills for raising revenue,” in article lof section 6 of the Constitution of the United States, and to the words “revenue laws” in acts relating to crimes and offenses, and in other acts.

But words and phrases are used with different signification and with different shades of meaning in different connections. They are not to be interpreted, invariably, as expressing precisely the same idea in all cases. So we held in relation to the word “vacancy” in Farden's Case (13 C. Cls. R., 347), and our judgment was affirmed, on appeal, by the Supreme Court.

In this case we are to determine the intention of Congress in the use of the words, “any suit or proceeding arising under the revenue laws,” as they appear in section 825 of the Bevised Statutes, and not as similar words may be employed elsewhere-in other connections.

The suit in question was upon a bond given by the collector of customs under a statute which still exists as re-enacted in section 2619 of the Bevised Statutes. This bond is required in order to secure to the United States payment of all money received by the collector from customs duties. This provision is-so far a part of the revenue laws that it constitutes a condition precedent to the collector’s entering upon the discharge of his duties and becoming a revenue officer. He cannot collect a dollar of revenue until he has filed his bond. This requirement is placed in the Bevised Statutes under the title of “ Colleution oe duties upon IMPORTS.” It would be out of place anywhere else.

The suit against a surety upon Collector Barrett’s bond was-instituted for the recovery by the United States of moneys due them for customs duties, not directly from the importer, but indirectly from the revenue officer to whom the moneys had been paid.

To hold that such a suit does not arise under the revenue laws, within the meaning of Bevised Statutes, § 825, we should be forced into the position that no suit against a party upon any bond could be held thus to arise, and that the statutes-meant only suits for the recovery directly from importers and debtors of- the money due by them for duties and other taxes. The section (Bev. Stat., 826) which immediately follows the one under consideration, negatives the correctness of this position and clearly implies that suits on bonds are within the provisions of the preceding section.

Moreover, the circuit court took that view of the law and entered a decree, amounting to a judicial determination, allowing to tbe claimant the commission which he now sues for. That judgment does not appear to have been set aside, but remains in full force. It is at least questionable whether this court is not conclusively bound by it. The circuit court had jurisdiction of the action and of the taxation of all costs which it held to arise in the course of the proceedings. The statute requires the district attorney’s compensation to be taxed, and no other court can tax it but the court having such jurisdiction.

To the extent of that allowance the claimant became entitled to part of the proceeds of the judgment when collected.

The counsel for the defendants further objects that the money on which the commission was allowed was not “collected and realized” within the meaning of the statute, because it was not collected by the claimant. But the statute does not require the collection of the money by the hands of the district attorney himself as a condition precedent to the recovery of commission. The provision of the statute is satisfied if the money be realized by the government in any form, after the district attorney has conducted the suit to a successful termination in a judgment in favor of the United States. Ordinarily an execution would issue and the money would be collected by the marshal. But the. judgment may be paid in any manner, so that the United States realize the amount due, either by payment in cash into the Treasury by the judgment debtor himself, or by way of set-off to any claim which he may have against the United States.

The Secretary of the Treasury chose to take payment by way of set-off instead of waiting for the settlement of the estate of Blgee, in the hands of his executrix.

Thus the United. States realized not only that part of the judgment to which the government was entitled, but received the whole amount, including the claimant’s commission. For this last they are, therefore, liable to him as for money had and received to his use. It would work great injustice if it were otherwise, and if the claimant could be deprived of his well-earned commissions by the mere manner in which payment was accepted by the Secretary of the Treasury.

We hold that the claimant is entitled to recover the sum of $2,100.15 on the first cause of action, which is the extent of his claim as set forth in the petition.

The second cause of action is for the sum of $1,000, certified by the judge of the circuit court of the United States for the fifth circuit and district of Louisiana, under the provisions of section 827 of the Revised Statutes, to be the proper compensation to the claimant for appearing, by direction of the Secretary of the Treasury, and defending one Burbridge, a special agent of the Treasury Department under the Abandoned and captured property Act (12 Stat. L., S20), in a suit instituted against him in that court for acts done by him in the performance of his official duty as such agent. That section is as follows:

Sec. 827. When a district attorney appears by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, for any act done by him, or for the recovery of any money received by him and paid into the Treasury in the performance of his official duty, he shall receive such compensation as may be certified to be proper by the court in which the suit is brought, and approved by the Secretary of the Treasury.”

The counsel for the United States raises the question whether or not a special agent under the captured and abandoned property act was an “officer of the revenue,” for'whose defense the Secretary of the Treasury had authority to direct the employment of the district attorney, and it is claimed that if the court-finds he was not such an officer then the claimant cannot recover for defending him.

We do not deem it necessary under the circumstances of this claim to define the meaning of the expression “ officers of the revenue,” or to determine whether or not Burbridge was such an officer within the strict and exact signification of the words. It is by no means clear that he did not come within the spirit and even within the letter of the statute. But whether he did or not, that question, so far as the employment of the claimant and his right to compensation are concerned, had been settled by the action of the Secretary of the Treasury and the circuit court of the United States before this suit was commenced, and, in our opinion, the defense now interposed in that regard is not at this time open to the defendants.

The Secretary of the Treasury directed the employment of the claimant to undertake the defense of Burbridge as an officer of the revenue; the judge of the circuit court of the United States in Louisiana so construed his employment and made a certificate of tbe proper compensation to be paid to him, as required by Kevised Statutes, § 827; the Treasury Department, through the Solicitor of the Treasury, approved the claim, and the secretary, acting through his assistant, making no objection to its validity, declined to pay it for the sole reason that the appropriation applicable to its payment was exhausted.

It is no defense in this court to a valid claim that Congress has omitted to make an appropriation to meet its payment, as we have repeatedly shown in former cases. (Collins's Case, 15 C. Cls. R., 35; Parsons’s Case, ib., 246.)

The claimant acted in good faith, and in our opinion is entitled to recover the sum of one thousand dollars, as certified by the judge of the circuit court.

Judgment will be entered in favor of the claimant on the two causes of aciion for the sum of $3,100.15.  