Supreme Court of United States.
*120 Mr. James Coleman, Mr. A.T. Britton, and Mr. A.B. Browne for appellant.
Mr. Assistant Attorney General Dodge and Mr. Samuel A. Putnam for appellees.
MR. JUSTICE SHIRAS delivered the opinion of the court.
As taking them out of the general rule excluding creditors of the government from recovering interest, the claimants *121 point to section 1090 of the Revised Statutes, which reads as follows: "In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of five per centum shall be allowed from the date of its presentation to the Secretary of the Treasury for payment as aforesaid, but no interest shall be allowed subsequent to the affirmance unless presented for payment to the Secretary of the Treasury as aforesaid."
As the claimants themselves appealed from the first judgment of the Court of Claims, and did not appeal from the second judgment, it is plain that they are not within the express terms of the statute they rely on. The first judgment was not affirmed, and the second judgment was not appealed from.
The contention that, inasmuch as the claimants brought the judgment of the court below into the Supreme Court for correction and there prevailed, they are within the fair meaning of the statute, is not without force; but we are relieved from its consideration by the conduct of the claimants in accepting payment of their judgment under the act of February 1, 1888, c. 4, 25 Stat. 4, 24, the terms of which were as follows: "To pay the judgment of the Court of Claims in favor of the Pacific Railroad eighty-five thousand three hundred and ninety-six dollars and twenty-four cents, being in addition to the sum of forty-four thousand eight hundred dollars and seventy-four cents, appropriated by the act approved August fourth, eighteen hundred and eighty-six, to pay a judgment in favor of said Pacific Railroad, which two sums shall be in full satisfaction of the judgment in favor of the Pacific Railroad reported to Congress in the House Executive Document number twenty-nine, Fiftieth Congress, first session."
In Stewart v. Barnes, 153 U.S. 456, this court held that when a person from whom an internal revenue tax had been illegally exacted, accepted from the government the precise amount of the sum thus illegally exacted, he thereby gave up his right to sue for interest as incidental damages; and the case of Moore v. Fuller, 2 Jones, (Law,) 205, was cited, wherein the Supreme Court of North Carolina said: "The general *122 principle is that when the principal subject of a claim is extinguished by the act of the plaintiff, or of the parties, all its incidents go with it. Thus, in an action of ejectment, if the plaintiff, pending the suit, takes possession of the premises, upon the plea of the defendant or upon its being shown, the plaintiff will be nonsuited. So, in an action of detinue, if the plaintiff takes possession of the property claimed, he can recover no damages, for they are consequential upon the recovery of the thing sued for. This is an action of debt on a bond to recover the interest, the principal having been paid by the defendant before the bringing of the action: by that payment, the bond was discharged, and by analogy to the cases referred to, the plaintiff cannot recover the interest, which is but an incident to the principal the bond."
To the same effect is the case of Tillotson v. Preston, 3 Johns. 229, which was an action of assumpsit for money had and received. In addition to the general issue, there was a plea of payment of the sums mentioned in the declaration. To this plea of payment the plaintiff demurred specially, alleging for one ground of demurrer that the plea did not allege that the defendant had paid to the plaintiff the interest. The court said: "The demurrer is not well taken. If the plaintiff has accepted the principal, he cannot afterwards bring an action for the interest."
See, likewise, the case of De Arnaud v. United States, 151 U.S. 483, where it was held that the receipt by a claimant against the United States for a sum less than he had claimed, paid him by the disbursing agent of a department, "in full for the above account," is, in the absence of allegation and proof that it was given in ignorance of its purport, or in circumstances constituting duress, an acquittance in bar of any further demand citing Baker v. Nachtrieb, 19 How. 126, and United States v. Childs, 12 Wall. 232.
The judgment of the court below, dismissing the plaintiff's petition, is
Affirmed.
