
    UNITED STATES v. FERGUSON.
    (Circuit Court of Appeals, Second Circuit.
    January 13, 1897.)
    1. Money Wkongfully Retained by Federal Officer— Claim against United States — Statute. !
    Money taken from one arrested for larceny from a post office was retained by the inspector under the erroneous supposition that it was the money stolen. Held, that an order by the prisoner to the inspector to pay it to a third person was not an assignment of a claim against the United States, within Rev. St. § 3477, requiring such assignments to be made in the presence of witnesses, and after the allowance of the claim.
    2. Same — Right of Action — Assignment of. i
    A written order to an officer to pay to a third party money belonging to the drawer, but retained by the officer without authority, is an assignment of, the right of action to recover it.
    8. Review on Appeal — Findings of Fact.
    Findings of fact will not be reviewed where the evidence is not in the record.
    
      4. Same— Assisxmetits op Error — Sufficiency.
    General assignments that the court erred in rendering judgment against the defendant, and in not rendering judgment in his favor, cannot be considered.
    In Error to the District Court of the United States for the Northern District of New York.
    Action by Frank C. Ferguson against the United States. Judgment for plaintiff (64 Fed. 88), and defendant appeals.
    Wm. A. Poucher, U. S. Atty.
    Ford & Ferguson, for defendant in error.
    Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
   WALLACE, Circuit Judge.

The plaintiff in error was the defendant in the court below, and seeks to review a judgment for the •plaintiff in a suit brought pursuant to the provisions of the act of congress of March 3, 1887, entitled, “An act to provide for the bringing of suits against the government of' the United States.” Conformably with section 7 of the act, the court below made and filed a written opinion setting forth the specific findings of fact and the conclusions of law involved in the case. There is no bill of exceptions, and none of the evidence or rulings of the court upon the trial are before us. The assignments of error are eight in number.

The suit was brought to recover a small sum of money ($50.60) in the possession of the government, which had been received by the postmaster general of the United States from a post-office inspector. It appears from the findings of fact that the post-office inspector received the money, and afterwards forwarded it to the postmaster general, under the following circumstances: One Atwood had burglariously entered a post office and stolen postage stamps of the value of $320.61, and money to the amount of $50.60, belonging to the government. He was arrested the next day, and postage stamps of the value of $127.30, and $113.96 in money, were found upon his person. The stamps and money were turned over by the arresting officers to the post-office inspector in charge of the case. The inspector, apparently assuming that the money found upon Atwood’s person was, to the extent of $50.60, the stolen money, kept that amount in his possession pending the trial of Atwood. In fact, it was not the stolen money, or the proceeds of the stolen postage stamps. The plaintiff, a lawyer, was retained by Atwood to defend him upon the trial, and Atwood gave him a written order, directed to ' the inspector, for the payment of the $50.60 in the hands of the inspector. The plaintiff presented this order to the inspector, but the latter refused to pay over the money. Thereafter Atwood was convicted of the burglary, and the inspector transmitted the money •to the postmaster general. As a conclusion of law, the court found that the plaintiff was entitled to judgment for the sum of $50.60, and interest thereon from the time of the demand and refusal.

The first and second assignments of error allege that the court erred in not finding that there was no legal and valid assignment of the money from Atwood to the plaintiff. It is argued iu support of these assignments of error that the order given by Atwood to the plaintiff was an assignment oí a claim against the United States, and void by force of section 3477 of the Revised Statutes, which enacts that “all transfers and assignments made of any claim upon the United Slates * * * shall be absolutely null and void unless they are freely made and executed in ihe presence of at least two at tes ling' witnesses, after ihe allowance of such a claim, the ascertainment of the amount due and the issuing of a warrant for the payment thereof.” The obvious answer to this contention is that, when the money in the hands of the inspector was trans: ferred by Atwood to the plaintiff, there was no claim against the United Stales. As was said in Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct. 870, the section “only refers to claims against the United states which can be presented by the claimant io some department or officer of the United States for payment, or may be prosecuted in the court of claims. The section simply forbids the assignment of such claims before their allowance.” At the time when the order was given tin? inspector had no authority, under the laws of the United States, or no color of authority, to take into his possession and assume io retain money belonging to Atwood, even though Atwood had stolen an equivalen! sum of government moneys from a post office. It is not pretended that any statute, or any regulation of the postmaster general made pursuant to a stalute, could sanction a, iransaction of that kind. So long as ¡he money was in the hands of the inspector, or of his superior officer, the postmaster general, there was no claim against the United States, and only one against the officers of the government, who had transcended their authority, and. made themselves individually liable for the consequences. No claim accrued against the government until it ratified the acts of these officers by receiving and retaining the money which had been taken from Atwood. Until ¡hen, the government could have repudiated (heir acts, and there would not have been the slightest foundation for an action against it. The order given by Atwood to the plaintiff, being for money then in the adverse possession of another, was but a transfer of a chose in action. It, however, operated as an assignment of his cause of action for the recovery of the monev. Hall v. Robinson. 2 N. Y. 293; Waldron v. Willard, 17 N. Y. 467; Sherman v. Elder, 24 N. Y. 381. It is now generally the doctrine in this country ihat a cause of action for a c aversion is assignable. See 2 Am. & Eng. Enc. Law (2d Ed.) p. 1021.

The third, fourth, fifth, and sixth assignments of error impugn some of the findings of fact made by the court. There being no bill of exceptions, we can only review errors apparent upon the record. As the evidence upon the trial is not Indore us, these findings cannot be reviewed.

The seventh assignment alleges as error that the court erred in rendering a judgment against, the defendant; and the eighth, that the court erred in not, rendering a judgment in favor of the defendant. These assignments do not comply with ihe rules, as they fail to point out any particular error asserted and intended to be urged. Whether' they mean that a wrong result was reached because the facts were érroneously decided, or because the court erred in applying the law to the facts, can only be conjectured. Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; Oswego Tp. v. Travelers’ Ins. Co., 17 C. C. A. 77, 70 Fed. 225; Doe v. Mining Co., 17 C. C. A. 190, 70 Fed. 455. As was said by the circuit court of appeals for the Seventh circuit in the first of these cases, “an assignment of error cannot be good if it is necessary to look beyond its terms to the brief for a specific statement of the question to be presented.” The court, at its option, may notice a plain error not assigned. A careful examination of the brief which has been submitted for the plaintiff in error fails to disclose any such error.

The judgment should be affirmed.  