APPEAL from the District Court for the Eastern District of Louisiana. On the 18th of September 1833, Cox, the defendant in error, applied, by petition, to the judge of the district court of the United States for the eastern district of Louisiana, for an injunction, to forbid all further proceedings on a warrant, then in the hands of the marshal, issued by the solicitor of the treasury, under the act of the 15th of May 1830, and by which the marshal was directed to levy and collect the sum of $4163.50, then appearing to be due from said Cox, as a receiver of public moneys at New Orleans, to the United States. The petitioner alleged, that he was not indebted to the United States, but that they were indebted to him, in certain amounts which should be set off, or compensated, against the balance claimed under the warrant; and which, being allowed, would leave a balance due him from the United States of $4510.37. He, therefore, prayed, that an injunction might be granted; that the amount claimed by the warrant be declared satisfied and compensated; that the cause be tried by a jury; and that he have all other and further relief to which he might be entitled.
Security being given, the injunction was issued as prayed for; a citation was issued to the marshal, and on affidavit of Cox, the cause was continued until the 6th of March 1835; when the court ordered the district-attorney to show cause, on the first day of the next term, why the facts arising in the case should not be tried by a jury. This rule having been argued, was subsequently made absolute by the court; and it was referred to a jury to settle whether Nathaniel Cox was entitled to the credits claimed in his petition or any of them. On the 9th of January 1836, the cause was tried by a jury, who found that Cox was not indebted to the United States; but that on the contrary, the United States were indebted to him in the sum of $1559.64. The court thereupon made the injunction perpetual, and certified that the United States are indebted to the said Nathaniel Cox in the sum of 1559.64. The United States, on the trial, took three several exceptions:
1. Before the jury were all sworn, the district-attorney objected to the swearing of the jury at all; that the case was one of chancery jurisdiction; that no issue had been directed by the court to ascertain any particular fact; and that if the cause were submitted to the jury, under the rule of the 6th of March 1835, the entire cause should be submitted, as one of common-law jurisdiction. The objections were overruled, and the jury sworn as usual in common-law cases.
2. The defendant claimed to be credited with the amount of certain orders, bills and checks, issued by one Wilkinson, a purser in the navy, held by the defendant, Cox, and specified in the document exhibited and stated in the record; to which the district-attorney objected, and prayed the court to instruct the jury, that the defendants, as navy agent, was not authorized by law to pay the sums specified in the several vouchers, nor to buy such vouchers, and present the same against any sum due from him to the United States. The court refused this instruction, but charged the jury, that in point the strict law, the vouchers relied on, could not be received; but if they should be of opinion, that they presented equitable set-offs, they might allow them.
3. The defendant offered in evidence a certain schedule, and certain vouchers, in order to establish a set-off of $1433.12 and to show that the vouchers had been disallowed at the treasury, before the commencement of the suit, introduced certain depositions, to the introduction of which the district-attorney objected, on the ground, that said depositions were not legal or sufficient proof of the presentation to, or disallowing of said documents by, the proper accounting officer of the treasury. The court overruled the objection, and the documents were permitted to go to the jury, who allowed them to the defendant.
The case was argued by Butler, Attorney-General, for the United States. No counsel appeared for the appellee.
Butler insisted, that this court had jurisdiction of the case; that the decisions of the court below, on the points presented, were erroneous; and that the decree or judgment should be reversed.