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Discharge by the President.

March 3, 1875.

Amount of debt

Secretary may make, or require to be made, an examination and inquiry into the circumstances of the debtor, by the oath of the debtor, which the Secretary, or any other person by him specially appointed, is authorized to administer, or otherwise, as the Secretary shall deem necessary and expedient, to ascertain the truth; and upon proof made to his satisfaction, that the debtor is unable to pay the debt for which he is impris oned, and that he has not concealed or made any conveyance of his estate, in trust, for himself, or with an intent to defraud the United States, or to deprive them of their legal priority, the Secretary is authorized to receive from such debtor any deed, assignment, or conveyance of his real or personal estate, or any collateral security, to the use of the United States. Upon a compliance by the debtor with such terms and conditions as the Secretary may judge reasonable and proper, the Secretary must issue his order, under his hand, to the keeper of the prison, directing him to discharge the debtor from his imprisonment under such execution. The debtor shall not be liable to be imprisoned again for the debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor. The benefit of this section shall not be extended to any person imprisoned for any fine, forfeiture, or penalty, incurred by a breach of any law of the United States, or for moneys had and received by any officer, agent, or other person, for their use; nor shall its provisions extend to any claim arising under the postal laws.

6 June, 1798, ss. 1, 3, v. 1, pp. 561-562.

SEC. 3472. Whenever any person is imprisoned upon execution for a debt due to the United States, which he is unable to pay, and his case is such as does not authorize his discharge by the Secretary of the Treasury, under the preceding section, he may make application to the President, who, upon proof made to his satisfaction that the debtor is unable to pay the debt, and upon a compliance by the debtor with such terms and conditions as the President shall deem proper, may order the discharge of such debtor from his imprisonment. The debtor shall not be liable to be imprisoned again for the same debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor.

3 March, 1817, v. 3, p. 399.

That when any final judgment recovered against the United States or other claim duly allowed by legal authority, shall be presented to due U. S. to be the Secretary of the Treasury for payment, and the plaintiff or claimwithheld by Sec- ant therein shall be indebted to the United States in any manner, whether retary of Treas as principal or surety, it shall be the duty of the Secretary to withhold ury in paying payment of an amount of such judgment or claim equal to the debt judgments, &c., of debtor against thus due to the United States; and if such plaintiff or claimant assents to such set off, and discharges his judgment or an amount thereof equal Secretary to to said debt or claim, the Secretary shall execute a discharge of the execute dis- debt due from the plaintiff to the United States. charge, when.

U.S.

But if such plaintiff, or claimant, denies his indebtedness to the United States, or refuses to consent to the set-off, then the Secretary shall withhold payment of such further amount of such judgment, or claim, as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to final judgment. Proceedings And if such debt is not already in suit, it shall be the duty of the when claimant Secretary to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch.

denies debt.

Balance, how And if in such action judgment shall be rendered against the United paid when claim- States, or the amount recovered for debt and costs shall be less than ant obtains judg- the amount so withheld as before provided, the balance shall then be ment against U. paid over to such plaintiff by such Secretary with six per cent. interest thereon for the time it has been withheld from the plaintiff.

S.

3 March, 1875, v. 18, p. 481.

NOTE.-Security for a debt is not payment. The Fourth Auditor is not authorized to consider security offered for a debt due the United States, however ample it may be, a payment of a debt.-Op. 1, p. 593, Wirt, Jan. 24, 1823.

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Title 40. Distress-war.

SEC. 3625. Whenever any collector of the revenue, receiver of public money, or other officer who has received the public money before it is paid into the Treasury of the United States, fails to render his account, rant. or pay over the same in the manner or within the time required by law, it shall be the duty of the First Comptroller of the Treasury or the Commissioner of Customs as the case may be, to cause to be stated the account of such officer, exhibiting truly the amount due to the United States, and to certify the same to the Solicitor of the Treasury, who shall issue a warrant of distress against the delinquent officer and his sureties, directed to the marshal of the district in which such officer and his sureties reside. Where the officer and his sureties reside in different districts, or where they, or either of them, reside in a district other than that in which the estate of either may be, which it is intended to take and sell, then such warrant shall be directed to the marshals of such districts, respectively.

15 May, 1820, s. 2, v. 3, p. 592.

29 May, 1830, s. 1, v. 4, p. 414.
27 Feb., 1877, v. 19, p. 249.

SEC. 3626. The warrant of distress shall specify the amount with Contents of which such deliquent is chargeable, and the sums, if any, which have warrant. been paid.

Ibid.

SEC. 3627. The marshal authorized to execute any warrant of distress shall, by himself or by his deputy, proceed to levy and collect the sum remaining due, by distress and sale of the goods and chattels of such dilinquent officer; having given ten days' previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town and county where the goods or chattels were taken, or in the town or county where the owner of such goods or chattels may reside. If the goods and chattels be not sufficient to satisfy the warrant, the same may be levied upon the person of such officer, who may be committed to prison, there to remain until discharged by due course of law.

15 May, 1820, s. 2, v. 3, p. 593.

SEC. 3628. If the delinquent officer absconds, or if goods and chattels belonging to him cannot be found sufficient to satisfy the warrant, the marshal or his deputy shall proceed, notwithstanding the commitment of the delinquent officer, to levy and collect the sum which remains due by such delinquent, by the distress and sale of the goods and chattels of his sureties; having given ten days' previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town or county where the goods or chattels were taken, or in the town or county where the owner resides.

Ibid.

SEC. 3629. The amount due by any delinquent officer is declared to be a lien upon the lands, tenements, and hereditaments of such officer and his sureties, from the date of a levy in pursuance of the warrant of distress issued against him or them, and a record thereof made in the office of the clerk of the district court of the proper district, until the same is discharged according to law.

Ibid.

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SEC. 3630. For want of goods and chattels of a delinquent officer, or Sale of lands his sureties, sufficient to satisfy any warrant of distress issued pursuant regulated. to the foregoing provisions, the lands, tenements, and hereditaments of

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Failure of dis

such officer and his sureties, or so much thereof as may be necessary for that purpose, after being advertised for at least three weeks in not less than three public places in the county or district where such real estate is situate, before the time of sale, shall be sold by the marshal of such district or his deputy.

Ibid.

SEC. 3631. For all lands, tenements, or hereditaments sold in pursu ance of the preceding section, the conveyance of the marshal or his deputy, executed in due form of law, shall give a valid title against all persons claiming under such delinquent officer or his sureties.

Ibid.

SEC. 3632. All moneys which may remain of the proceeds of sales, after satisfying the warrant of distress, and paying the reasonable costs and charges of the sale, shall be returned to such delinquent officer or surety, as the case may be.

Ibid.

SEC. 3633. Whenever any officer employed in the civil, military, or bursing officer to naval service of the Government, to disburse the public money approaccount; pen-priated for those branches of the public service, respectively, fails to

alty.

Extent of ap

vision for dis

render his accounts, or to pay over, in the manner and in the times required by law, or by the regulations of the Department to which he is accountable, any sum of money remaining in his hands, it shall be the duty of the First or Second Comptroller of the Treasury, as the case may be, who shall be charged with the revision of the accounts of such officer, to cause to be stated and certified the account of such delinquent officer to the Solicitor of the Treasury, who is hereby authorized and required immediately to proceed against such delinquent officer, in the manner directed in the six preceding sections.

15 May, 1820, s. 3, v. 3, p. 594.

29 May, 1830, s. 1, v. 4, p. 414.

SEC. 3634. All the provisions relating to the issuing of a warrant of plication of pro- distress against a delinquent officer shall extend to every officer of the tress-warrants. Government charged with the disbursement of the public money, and to their sureties, in the same manner and to the same extent as if they were herein described and enumerated.

Postponement

for non-account

15 May, 1820, s. 3, v. 3, p. 594.

SEC. 3635. With the approval of the Secretary of the Treasury, the of proceedings institution of proceedings by a warrant of distress may be postponed, ing, allowed. for a reasonable time, in cases where, in his opinion, the public interest will sustain no injury by such postponement.

warrant.

Ibid.

Injunction to SEC. 3636. Any person who considers himself aggrieved by any warstay distress-rant of distress issued under the foregoing provisions may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. But no injunction shall issue till the party applying for it gives bond, with sufficient security, in a sum to be prescribed by the judge, for the performance of such judgment as may be awarded against him; nor shall the issuing of such injunction in any manner impair the lien produced by the issuing of the warrant. And the same proceedings shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if, upon dissolving the injunction, it appears to the satisfaction of the judge that the application for the injunction was merely for delay, the judge may add to the lawful interest assessed on all sums found due against the complainant such damages as, with such lawful interest, shall not exceed the rate of ten per centum a year. Such injunction may be granted or dissolved by the district judge either in or out of court.

Ibid., ss. 4, 5.

Proceedings on SEC. 3637. When the district judge refuses to grant an injunction to distress in cir- stay proceedings on a distress-warrant, as aforesaid, or dissolves such injunction after it is granted, any person who considers himself aggrieved by the decision in the premises may lay before the circuit justice, or

cuit court.

circuit judge of the circuit within which such district lies, a copy of the proceedings had before the district judge; and thereupon the circuit justice or circuit judge may grant an injunction, or permit an appeal, as the case may be, if, in his opinion, the equity of the case requires it. The same proceedings, subject to the same conditions, shall be had upon such injunction in the circuit conrt as are prescribed in the district

court.

Ibid., ss. 4, 6.

10 April, 1869, s. 2, v. 16, p. 44.

re

SEC. 3638. Nothing contained in the provisions of this Title relating Rights of Unito distress-warrants shall be construed to take away or impair any right ted States served. or remedy which the United States might have, by law, for the recovery of taxes, debts, or demands.

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SEC. 285. Every disbursement of public moneys, or disposal of public Title 7, Chap. 4. stores, made by a disbursing officer pursuant to an order of any com- Disbursements, manding officer of the Navy, shall be allowed by the proper accounting &c., by order of officers of the Treasury, in the settlement of the accounts of the officer, commanding offiupon satisfactory evidence of the making of such order, and of the pay- cer of Navy. ment of money or disposal of stores in conformity with it; and the commanding officer by whose order such disbursement or disposal was made, shall be held accountable for the same.

3 March, 1849, Res. 2, v. 9, p. 419.

SEC. 957. When suit is brought by the United States against any Title 13, Chap.18. revenne officer or other person accountable for public money, who neg; Delinquents for lects or refuses to pay into the Treasury the sum or balance reported public in oney; to be due to the United States, upon the adjustment of his account it judgment at re shall be the duty of the court to grant judgment at the return term, taru term, unless, upon motion, unless the defendant, in open court, (the United States &c. attorney being present,) makes and subscribes an oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the accounting officers of the Treasury, and rejected; specifying in the affidavit each particular claim so rejected, and that he cannot then safely come to trial. If the court, when such oath is made, subscribed, and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted. Such continuance may also be granted when the suit is brought upon a bond or other sealed instrument, and the defendant pleads non est factum, or makes a motion to the court, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, contract, or other paper certified in the affidavit. And no continuance shall be granted except as herein provided. [See § 3624.]

3 March, 1797, s. 3, v. 1, p. 514.

SEC. 1389. It shall not be lawful for any paymaster, passed assistant Title 15, Chap. 1. paymaster, or assistant paymaster, to advance or loan, under any pre- Loans to officers ense whatever, to any officer in the naval service, any sum of money, by paymasters. public or private, or any credit, or any article or commodity whatever.

26 Ang., 1842, s. 6. v. 5, p. 536.

22 June, 1860, s. 3. v. 12, p. 83.

Title 15, Chap. 7.

Disbursements

SEC. 1550. No person shall be employed or continued abroad, to re ceive and pay money for the use of the naval service on foreign staon foreign sta- tions, whether under contract or otherwise, who has not been, or shall not be, appointed by and with the advice and consent of the Senate.

tions.

Title 15, Chap. 8. Advances to tant stations.

17 June, 1844, s. 4, v. 5, p. 703.

SEC. 1563. The President of the United States may direct such advances, as he may deem necessary and proper, to such persons in the persons on dis- naval service as may be employed on distant stations where the discharge of the pay and emoluments to which they are entitled cannot be regularly effected. [See § 3648.]

Title 19.

Officers in ar

rears.

Title 19.

31 Jan., 1823, s. 1, v. 3, p. 723.

SEC. 1766. No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable. In all cases where the pay or salary of any person is withheld in pursuance of this section, the accounting officers of the Treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the Solicitor of the Treasury the balance due; and the Solicitor shall, within sixty days thereafter, order suit to be commenced against such delinquent and his sureties.

25 Jan., 1828, v. 4, p. 246.

20 May, 1836, v. 5, p. 31.

NOTES.-The phrase "who is in arrears to the United States" seems to apply materially and properly only to persons who, having previous transactions of a pecuniary nature with the Government, are found, upon the settlement of those transactions, to be in arrears to the Government by holding in their hands pub lic moneys which they are to refund. Op. I, 676, Wirt, July 22, 1824, III, 52, Butler, March 21, 1836. Pay of officers, ascertained to be in default, can be withheld where the time for the accounting duly has actually passed-not otherwise.-Op. IV, 33, May 24, 1842, Legare.

"Pay," "salary," or "compensation" are synonymous terms, under the act of 25 January, 1828, authorizing the withholding of the pay of persons in arrears. The authority does not extend to rations.-Op. II, 420. "Extra pay," which is not pay proper, cannot be withheld.-Op. II, 593.

The officers of the Treasury are authorized to withhold the pay of officers of the Government who are ascertained to be defaulters, where the time for accounting has actually passed, but not otherwise. "Forthwith" is equivalent to without unnecessary delay."-Op. IV, 33, Legare, May 24, 1842.

It is the duty of disbursing officers to repay funds remaining in hand when the time for them to go to the surplus fund arrives. Certificates issued previous to that time, upon claims definitely ascertained, may be paid out of these appropriations, even though the time has passed for them to go to the surplus fund, if the disbursing officer has any of the appropriation in his hands. For what period and to what amount such officers should be allowed to retain funds in their hands for that purpose is a matter of administration falling within the province of the Secretary of the Treasury to regulate.-Op. XV. 357, Devens, Aug. 10, 1877.

The words "expenditures incurred" do not mean liabilities incurred. To incur an expenditure is to make a payment-to expend money. To incur liability and to incur an expenditure are two different and distinct things; and while the word inenr is not frequently used in connection with expenditure. yet when used it means an expenditure actually made.-Op. XIV, 128, Williams, Sept. 17, 1878.

SEC. 1788. Every officer of the United States concerned in the disbursement of the revenues thereof who carries on any trade or business Disbursing officers forbidden to in the funds or debts of the United States, or of any State, or in any trade in public public property of either, shall be deemed guilty of a misdemeanor, prop- and punished by a fine of three thousand dollars, and shall, upon conviction, be removed from office, and forever thereafter be incapable of holding any office under the United States.

funds or

erty.

Title 40.

agents.

2 Sept., 1789, s. 8, v. 1, p. 67.

8 May, 1792, s. 12, v. 1, p. 281.

2 March, 1799, s. 87, v. 1, p. 695.

SEC. 3614. Whenever it becomes necessary for the head of any DeBond of special partment or office to employ special agents, other than officers of the Army or Navy, who may be charged with the disbursement of public moneys, such agent shall, before entering upon duty, give bond in such form and with such security as the head of the Department or office employing them may approve. [See notes to this section under AGENTS.] 4 Aug., 1854, s. 14, v. 10, p. 573.

Duty of dis- SEC. 3620. It shall be the duty of every disbursing officer having any bursing officers. public money intrusted to him for disbursement, to deposit the same with the Treasurer or some one of the assistant treasurers of the United

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