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UNITED STATES V. O'GRADY, 89 U. S. 641 (1874)

U.S. Supreme Court

United States v. O'Grady, 89 U.S. 22 Wall. 641 641 (1874)

United States v. O'Grady

89 U.S. (22 Wall.) 641


When the government means to set up any counterclaim to the claim of a party suing in the Court of Claims, as ex. gr., when, on a suit under the Captured and Abandoned Property Act, to recover the proceeds of cotton sold under that act, it means to set up a tax, such as what is known as the "cotton tax," it must plead that tax by way of setoff or counterclaim to the suit, as is contemplated by the Act of March 3, 1863, or move for a new trial under the provisions of the Act of June 25, 1868. It cannot, after judgment has been given for the amount claimed by the petitioner, irrespective of such counterclaim and without any motion for a new trial having been made, set up and deduct at the Treasury the counterclaim when the amount awarded by the decree of the court is asked for there.

By the act organizing the Court of Claims, A.D. 1855, power was given to it to hear and determine all claims against the United States founded upon any law of Congress or upon any regulation of an executive department or upon any contract, express or implied, with the government of the United States. [Footnote 1]

Doubts, however, were suggested immediately upon the act's going into practical operation and on suits being brought against the United States whether the act meant to allow the United States to file setoffs in such suits and to give jurisdiction to the court to hear and determine them in the

Page 89 U. S. 642

way usually practiced in suits between private parties. If the act did thus mean, its meaning was not clearly expressed. Congress accordingly, by an act passed March 3, 1863, [Footnote 2] enacted that:

"In addition to the jurisdiction now conferred by law, the court shall also have jurisdiction of all setoffs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government against any person making claim against the government in said court, and upon the trial, it shall hear and determine such claim and demand, both for and against the government and the claimant, and if upon the whole case it finds the claimant is indebted to the government it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases,"


A still subsequent act -- one passed June 25, 1868 [Footnote 3] -- enacted:

"That the said Court of Claims, at any time while may suit or claim is pending before or on appeal from said court or within two years next after the final disposition of any suit or claim, may on motion of the United States grant a new trial in any such suit or claim and stay the payment of any judgment therein upon such evidence as shall reasonably satisfy said court that any fraud, wrong, or injustice has been done to the United States."

These two acts being in force, one O'Grady sued the United States in the said Court of Claims to recover the proceeds of certain cotton, confessedly his, which had been seized and sold under the Captured and Abandoned Property Act and which proceeds were now in the Treasury of the United States. That act, provides [Footnote 4] that the owner of such property shall be entitled to receive the residue of the proceeds thereof

"after the deduction of any purchase money which may have been paid, together with the expense

Page 89 U. S. 643

of transportation and sale of said property, and any other lawful expenses attending the disposition thereof."

The United States appeared, pleaded various pleas, but no plea in the nature of setoff, nor did it make any claim for or allusion to any sum as due for a "tax" on the cotton under any act of the United States, approved June 30th, 1864, or any other act, or as due otherwise for any tax.

The Court of Claims having heard the case and allowed to the United States a deduction from the gross proceeds for its outlay of purchase money, expense of transportation, sale, and other lawful expenses as claimed, decreed in favor of O'Grady for $72,450.

On O'Grady's presenting his claim as thus fixed for payment at the Treasury, the Secretary refused to pay it without the deduction of $4,181, which sum he alleged that the had a right to retain as a tax under acts of Congress, in force at the time of the capture of this cotton, one of which did confessedly assume to impose a tax of two cents a pound upon all cotton produced or sold and removed for consumption, and upon which no duty had been levied, paid, and collected, the tax being made by the act, until paid, a lien upon the cotton in the possession of any person whomsoever, [Footnote 5] and another of which [Footnote 6] enacted that "whenever any cotton &c., shall arrive from any state in insurrection against the government, the assessor shall immediately assess the taxes due thereon."

This deduction was submitted to under protest, and an agreement was entered into "that the rights of the several parties in respect to this tax are reserved, and remain subject to the decision of the Supreme Court."

To bring the question to this Court under this agreement, a petition was filed -- the petition in the present case -- praying judgment for $4,181.40, the amount of the tax claimed. The government pleaded that the government "is not indebted to the claimant in the said sum of money or in any part thereof."

Page 89 U. S. 644

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