ing officers in the last named department. The | Union, after ceding to the United States all sum paid to the petitioner was for services rendered in taking charge of the property of the United States, and not as being due him as an officer. The petitioner's account as presented shows this. The Secretary of the Ñavy expressly refused to recognize the petitioner as an officer of the navy of the United States. (See Secretary's letter.)

The plaintiff was appointed a commander in The resolution provides for ceding to the the navy of the republic of Texas on the 23d | United States all public edifices, fortifications, of September, 1844, and continued in its serv-barracks, ports and harbors, navy and navy ice down to the annexation of the republic to yards, docks, magazines, etc., and all other the United States, in pursuance of the joint property and means pertaining to the public resolutions of Congress, March 1, 1845, and defense. until Texas was admitted into the Union as one of the States of the confederacy, and was in the actual service of that republic at the time when its navy, consisting of four vessels of war, was delivered over to the authorities of the United States, according to the terms of

the Treasury, upon the requisitions of the Secretaries of these departments, countersigned by the second comptroller.

| decisive of the present one. The facts here are much stronger to illustrate the inconvenience and unfitness of the remedy.

Besides the duty of inquiring into and ascertaining the rate of compensation that may be due to the officers, under the laws of Congress, no payment can be made unless there has been an appropriation for the purpose. And if made, it may have become already exhausted, or prior requisitions may have been issued sufficient to exhaust it.

And, by the Act of 1817 (3 Statutes at Large, p. 367, secs. 8, 9), it is made the duty of the comptrollers to countersign the warrants only in cases when they shall be warranted by law. And all warrants drawn by the Secretary of the Treasury upon the treasurer shall specify the particular appropriations to which the same shall be charged; and the moneys paid by virtue of such warrants shall, in conformity there- The Secretary is obliged to inquire into the with, be charged to such appropriations in the condition of the fund, and the claims already books kept by the comptrollers; and the sums charged upon it, in order to ascertain if there appropriated for each branch of expenditure is money enough to pay all the accruing dein the several departments shall be solely ap-mands, and if not enough, how it shall be applied to the object for which they are respec- portioned among the parties entitled to it. tively appropriated, and no others. 2 Statutes These are important duties, calling for the at Large, p. 535, sec. 1. exercise of judgment and discretion on the part of the officer, and in which the general creditors of the government, to the payment of whose demands the particular fund is applicable, are interested, as well as the government itself. At most, the Secretary is but a trustee of the fund for the benefit of all those who have claims chargeable upon it, and, like other trustees, is bound to administer it with a view to the rights and interests of all concerned.

Formerly, the moneys appropriated for the war and navy departments were placed in the treasury to the credit of the respective secretaries. That practice has been changed, and all the moneys in the treasury are in to the credit or in the custody of the treasurers, and can be drawn out, as we have seen, only on the warrant of the Secretary of the Treasury, countersigned by the comptroller.

In the case of Mrs. Decatur v. Paulding (14 Peters, 497), it was held by this court that a mandamus would not lie from the Circuit Court of this District to the Secretary of the Navy to compel him to pay to the plaintiff a sum of money claimed to be due her as a pension under a resolution of Congress. There was no question as to the amount due, if the plaintiff was properly entitled to the pension; and it was made to appear, in that case, affirmatively, on the application, that the pension fund was ample to satisfy the claim. The fund, also, was under the control of the Secretary, and the money payable on his own warrant.

Still the court refused to inquire into the merits of the claim of Mrs. D. to the pension, or to determine whether it was rightfully withheld or not by the Secretary, on the ground that the court below had no jurisdiction over the case, and, therefore, the question not properly before this court on the writ of error.

It will not do to say, that the result of the proceeding by mandamus would show the title of the relator to his pay, the amount, and whether there were any moneys in the treasury applicable to the demand; for, upon this ground, any creditor of the government would be enabled to enforce his claim against it, through the head of the proper department, by means of this writ, and the proceeding by mandamus would become as common, in the enforcement of demands upon the government, as the action of assumpsit to enforce like demands against individuals.

For these reasons we think the writ of mandamus would *not lie in the case, and [*103 therefore, also, properly refused by the court below, and that the judgment should be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed.

The court say, that the duty required of the Secretary by the resolution was to be performed by him as the head of one of the executive departments of the government, in the ordinary discharge of his official duties; that, in 102*] general, such *duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties; that the head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required THE HEIRS OF C. and M. DE ARMAS, Appelto exercise judgment and discretion; and that the court could not by mandamus act directly upon the officer, and guide and control his judgment or discretion in matters committed to his care in the ordinary discharge of his official duties.

The court distinguish the case from Kendall v. The United States, 12 Peters, 524, where there was a mandamus to enforce the performance of a mere ministerial act, not involving, on the part of the officer, the exercise of any judgment or discretion.

The principle of the case of Mrs. Decatur is

lants,

་

THE UNITED STATES.

Practice judgment, when final.

An order of the District Court, sustaining a demurrer to a petition because it was multifarious, and because the names of the persons claiming or

NOTE. AS to what is a "final decree" of judgment from which appeal lies, see notes to 5 L. ed. U. S. 302; 4 L. ed. Û. S. 97; 49 L. ed. U. S. 1001; 62 L. R. A. 515.

It was a petition in the District Court relating to land, the circumstances of which it is unnecessary to state any further than they are referred to in the opinion of the court, as the case went off upon a point of jurisdiction. It was argued by Mr. S. S. Prentiss and Mr. Perin for the appellants, and Mr. Clifford (Attorney-General) for the United States.

That part of the argument of the AttorneyGeneral which related to the point of jurisdiction was as follows:

On the part of the United States it is contended, that the Supreme Court has no jurisdiction under the second section of the Act of 1824, or under any other act, unless in cases where the judgment or decree in the court below made final disposition of the suit.

This point has been repeatedly ruled, on the twenty-fifth section of the Judiciary Act, by the unanimous judgment of the court. and is believed no longer to be an open question. Houston v. Moore, 2 Wheat. 433; Gibbons v. Ogden, 6 Wheat. 448; Weston et al. v. City Council of Charleston, 2 Peters, 449; Winn's Heirs v. Jackson et al. 12 Wheat. 135.

"The word 'final' must be understood as applying to all judgments and decrees which determine the particular cause." Weston et al. v. City Council of Charleston, 2 Peters, p. 464,

465.

104*] *The Act of 1824 follows very closely the requirements of the Judiciary Act in this respect. The second section provides, "And in all cases the party against whom the judgment or decree of the said District Court may be finally given shall be entitled to an appeal, within one year from the time of its rendition, to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the parties; and should no appeal be taken, the judgment or decree of the said District Court shall, in like manner, be final and conclusive."

The appeal is allowed only to the party against whom the judgment or decree may be finally given; and, further, to place the point beyond doubt, in case no appeal be taken, it is specially provided that the judgment or decree of the District Court shall be final and conclusive.

In this case no final decree was made. Some points in the demurrer being sustained. the petitioners appeal. The petition is not dismissed. but, from aught that appears in the record, is still open to a rehearing. It is clearly within the discretionary power of the district judge to allow the appellants to amend and avoid the objections raised. At all events, the final decree has not been passed, and no appeal will

Mr. Justice Justice Taney delivered the opinion of the court:

This case is brought here by appeal from the District Court of the United States for the District of Louisiana.

It appears that a petition was filed by the appellants, claiming an inchoate title to certain lands, under Spanish grants, which they alleged the United States were bound to perfect; but that these lands had been sold by the United States to divers persons unknown to the petitioners. They therefore prayed that the validity of their claim might be inquired into, and that they be allowed to locate the same number of arpents upon the public domain, according to the provisions of the Act of Congress of May 26, 1824, sec. 11, which was extended to Louisiana by the Act of June 17, 1844.

The proceedings upon this petition, as stated in the record, appear to have been irregular and confused, and it is unnecessary to state them at large. It is sufficient to say, that the district attorney demurred to the petition, setting forth various causes of demurrer, that the petitioners afterwards amended their petition, and that the district attorney again demurred; *and after various other pro- [*105 ceedings, the record states that the following judgment was entered on the minutes:

"The demurrers to the original and to the amended petition of petitioners, submitted to the court yesterday, having been considered by the court, it is now ordered, adjudged and decreed, that the 4th ground of demurrer set forth in the demurrer to the original petition be sustained, and that the 1st, 2d, 3d, 5th, 6th, 7th, and 8th grounds set forth in said demurrer be overruled, it appearing that said last mentioned grounds of demurrer have been removed by petitioner's amended petition.

"It is further ordered, that the 1st and 2d grounds of demurrer, set forth in the demurrer of respondents to the amended petition of petitioners, be sustained, and that the 3d ground of demurrer, set forth in said demurrer to said amended petition, be overruled."

The grounds of demurrer sustained by the District Court were, that the petition was multifarious, and that the names of the persons claiming or in possession of the land which the petitioners alleged belonged to them were not set forth.

The appeal was taken from the judgment above recited. But evidently that judgment is not a final judgment or decree. For the petition is not dismissed, nor is the title of the petitioners to the land claimed by them finally adjudicated, nor their right to locate the same number of arpents upon the public domain. Nothing is decided but a question of pleading and a question as to proper parties. The petition appears to be still pending in the District Court; and the objections upon which the court decided against the petitioners might be removed, if the appellants desired it, by an apThe record does not show that the proceed-plication to the court for leave to amend. But ings in the court below are closed; consequently no case is made within the provisions of law authorizing an appeal. The petition and pleadings are still within the control of the court below.

lie.

if the petitioners did not move for leave to amend, and preferred taking the opinion of this court upon the questions decided against them in the District Court, then, under the opinion given by that court upon the demurrer,

it should have proceeded to pass a final decree | in the States of Louisiana, etc." The first of dismissing the bill. An appeal from that decree these acts is in the 4th volume of the Statwould have brought the case legally before utes at Large, p. 52; the last one is to be this court, and authorized it to examine the found in the 5th volume of the same work, p. grounds upon which the decree had been made. 676. But as there is no final judgment or decree, we have no jurisdiction, and consequently the appeal must be dismissed.

And on the 13th day of February, 1847, the | following entry was made on the minutes, to wit:

Saturday, February 13th, 1847.
Present, the Hon. T. H. McCaleb.
Curry and Garland

V.

The United States.

Upon motion of Thomas J. Durant, United States district attorney, that the land cause No. 1, and entitled as above, appeal has been granted from the judgment rendered therein to the Supreme Coart of the United States, at Washington, and that the said appeal has been made returnable on a subsequent day during the present session of the Supreme Court, and not on the first day of the said term, as the practice generally is; to the end that said case of appeal might have its chance of being tried during the present session; and as no object will be gained by issuing citation to the appellees, directing them to appear at any other time than on the first day of the said term of said court, it is therefore ordered, that the order upon the said petition of appeal in said cause be so amended as to make it returnable on or before the commencement of the next annual session of the Supreme Court.

Mr. Curry further said, that no citation upon this order was issued until the 14th of August, 1847. But at that time the year within which an appeal could be taken had expired for more than a month. The citation was also irregularly served. The following extract from the record shows the date of the citation, and its irregular service: United States District Court for the District of Louisiana.

entered; nor did any issue until the year allowed to appeal in had elapsed. Consequently there was no appeal within the year. See the case of Villabolos v. The United States, decided at the present term of this court. Ante. 81.

2. There was no service of the citation of appeal, even if it had issued in time, on the appellees, as is required by law.

3. That no appeal has been directed to be made to the Supreme Court of the United States in this case by the Attorney-General, so far as the record shows, in the manner prescribed by the 9th section of the Act of 26th May, 1824.

Mr. Clifford (Attorney-General) contended, on the part of the United States, that the appeal was not taken in fact until the 13th February, 1847; that an appellant may withdraw an appeal and renew it; that the appeal was prayed in open court, when no citation was necessary; that the citation was not necessarily a part of the record, and therefore was no part of a writ of error; that if served at any time before the return day, the service is good.

For these and other views he referred to 4 La. Rep. 318; Code of Practice, art. 494; 2 Smith, Ch. Pr. 14, 37; 2 Cranch, 33; 6 Binney, 16; 6 Mass. 435; 5 Howard, 295; 4 Cranch, 180; 3 Peters, 459; 7 Peters, 147. tended, that the 9th section of the Act of 1824 had not been complied with; *that the [*110 right of appeal was limited and not absolute, under the 2d and 9th sections of that act; that the public interest required that frivolous cases should not be brought up; that the service upon an attorney was not sufficient; that it de

Mr. Jones, in support of the motion, con

so, and here there were no rules; that a reference to the record would disprove that the 13th of February, 1847, was the time of appeal, and show that this order was merely a modification of an existing appeal.

Mr. Chief Justice Taney delivered the opinion of the court:

To_Thomas Curry and Rice Garland, greeting:pended on the rules of the court to make it You are hereby cited and admonished to be and appear before the Supreme Court of the United States of America, to be holden at Washington city, on the first Monday of December next, pursuant to an order of appeal granted on the thirteenth day of February, 1847, by the district judge of the United States for the District of Louisiana, in a certain suit 109*] *wherein you are plaintiff and the United States are defendants, to show cause, if any there be, why the decree rendered on the second day of May, 1846, against the said appellants and in your favor, should not be corrected, and why speedy justice should not be done to the parties in this behalf. Witness my hand and seal, at New Orleans, this fourteenth day of August, A. D. 1847.

Theo. H. McCaleb, U. S. Judge.

Marshal's return.

Rec'd, August 27th, 1847, and on the 8th September, 1847, served copies of the above citation on Wm. C. Hammer, in person, at New Orleans, said Wm. C. Hammer's names appearing on the docket as attorney for the above named plaintiffs.

Wm. Shearer, D'y U. S. Marshal. Filed 15th November, 1847.

Mr. Curry therefore moved to dismiss the appeal, on the three following grounds, viz.: 1. Because it was taken and entered in the clerk's office on the 5th November, 1846, and no citation issued or was served before the next term of this court after the appeal was

A motion has been made to dismiss this case for want of jurisdiction.

The appeal was taken from a decree of the District Court of the United States for the Louisiana District, confirming to the appellees certain lands which they claimed under a Spanish grant. The decree was made on the 2d of May, 1846. But a new trial was afterwards granted, in order that third persons, who also claimed title to the land, might have an opportunity of intervening in the suit, according to the practice of the Louisiana State courts. Subsequently, however, the petition of the interveñors was withdrawn, and another decree was passed and signed on the 26th of June, 1846, again confirming the title of the present appellees. It is not material to this inquiry whether the first or second decree is to be regarded as the final one in the District Court.

This proceeding by new trial (instead of rehearing, as in chancery) and intervention was irregular. And the court seems to have followed the Louisiana State practice, when the acts of Congress direct that the proceedings in such cases shall be conducted according to the