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AVERY V. UNITED STATES, 79 U. S. 304 (1870)

U.S. Supreme Court

Avery v. United States, 79 U.S. 12 Wall. 304 304 (1870)

Avery v. United States

79 U.S. (12 Wall.) 304


1. During the rebellion, the United States took possession of A.'s house in a rebel town as "captured and abandoned property," rented it from 1862 to 1865, and received rents, $7,000, which were in the federal Treasury. After the suppression of the rebellion, A. having returned home, the government sued him, and in March, 1867, got judgment and issued execution against him, he not pleading as a setoff the $7,000 received by the United States. In May, 1869, he applied to the court to satisfy the judgment, and moved also for a writ of audita querela, assigning as a reason for not having pleaded a setoff that he did not know until just before he filed his petition and made his present motion that the money was in the Treasury of the United States. Held that the petition and motion were rightly denied, for that if A. had a claim on the United States, he was in fault in not having discovered and pleaded it.

2. Audita querela does not lie where the party has had a legal opportunity of defense and neglected it.

3. Nor in any case against the United States.

Avery, owning a warehouse in Memphis, Tennessee, had become surety for the postmaster there appointed before the rebellion. During the war and after the government troops

Page 79 U. S. 305

had driven the insurgents from Memphis and were themselves in military occupation of the place, the Treasury agents of the United States taking possession of the house (under the act of Congress, as was stated in the brief of Avery's counsel, relating to captured and abandoned property), leased it to one Ford, who occupied it from September, 1862, till the same month in 1865, paying a monthly rent which amounted in all to about $7,000. The rebellion being suppressed and Avery having returned to Memphis, the United States sued him in the court below as surety on the postmaster's bond, and in March, 1867, got judgment against him for $5,023, and issued execution.

In this state of facts, which for the purposes of this case seemed to be conceded on both sides, Avery now, May, 1869, filed a petition in the same court in which the judgment had been got, setting forth the fact of the judgment and execution, the previous occupation of this property by the United States, and the receipt by rental agents of the United States and payment into the federal Treasury of rent for it amounting to the sum of $7,000, and praying the court to stay proceedings on the execution and to have the judgment declared satisfied. The ground of his petition, of course, was the alleged fact that the government had received rents from his warehouse for a sum larger than the amount of their judgment, a fact in proof of which he annexed to his petition copies of the rental agent's receipts. As a reason why he had not presented his demand by way of setoff on the trial of the suit against him as the postmaster's surety, he alleged that he did not know at that time that the money was in the Treasury of the United States, nor did he receive knowledge of that fact or evidence on which to found his demand until shortly before presenting his petition. When filing his petition, he moved also for a writ of audita querela, asking for it on the facts and statements contained in his petition.

The court below, without any formal pleadings, denied the prayer of the petition and also refused to grant the writ. To this, its action, the present writ of error was taken.

Page 79 U. S. 306

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