but no action has been had upon it by that body. The secre tary has refused to act, and our hope is now in the judiciary.

By this verdict and judgment, it is now settled, that there is a large amount due to Reeside; and the only question now is, whether the judiciary has power to coerce the payment. The 3d article of the constitution confers upon the supreme, and such other courts as shall be established by congress, the entire judicial power of the United States. The second section of that article, which indicates the extent of the power, declares that it shall extend to all cases arising under the laws of the United States, or in which the United States shall be a party. This is a case arising under the laws, and in which the United States is a party. In 1795, the supreme court held, in the case of Chissell v. The State of Georgia, (2 Dallas, 478,) that, under the constitution as it then existed, states were suable. This led to an amendment of the constitution, by which states were exempted from suit. In 1801, an act was passed re-organizing the courts. (Sec. 2, Stat. at Large, 92.) By that act, jurisdiction was given to the circuit courts over all cases, in law and equity, in which the United States should be plaintiffs. The act of February 27, 1801, (2 Stat. 103,) makes the same distinction; thus restricting the power given by the constitution to the judiciary. Can it be doubted, that the United States may authorize suits to be brought against it? The power has frequently been exercised by congress. Citizens of Arkansas, Louisiana, and other states, have been expressly authorized to institute suits against the United States. One such suit has been known in this court;-that of Van Ness and others v. United States.

The question is this: Has congress invested the circuit court of Pennsylvania with the power to decide in relation to the rights of the parties, and this court with the power to enforce their judgment. The act of March 3d, 1797, (1 Stat. at Large, 512,) passed shortly after the decision in the case of Chissell v. State of Georgia, was an act avowedly to provide for the settlement of accounts. The 4th section of that act provides that in suits between the United States and individuals, no claim for credit shall be admitted upon trial, but such as shall appear to have been presented to the accounting officers of the treasury, and by them disallowed in whole or in part.

Jurisdiction over the credits rejected by the treasury officers, is conferred upon the court. It is an appellate jurisdiction from the decision of those officers. This court has a right to say that a voucher is correct, and that party is entitled to credit therefor; and if such voucher is found good by the court and jury, they cannot say they will not allow the same as an offset and not otherwise. The power of the court, as an appellate power, is coëxtensive with that of the officers of the treasury. With the aid of a jury, they have full power in every case where a claim has been rejected by the accounting officers of the treasury. In case ten suits should be brought by the government for a thousand dollars each, a single voucher for five thousand would kill the whole seriatim. The case has been decided more than once. The suits could not all be lumped together, and the five thousand apply as an offset merely to so many as it should cover. The defendant is entitled to every credit for

all his claims. The terms of the act of 1797 are broad and comprehensive. See also The United States v. Wilkins, (7 Wheat. 143.) In the case of Walton v. The United States, (9 Wheat. 651,) the opinion was delivered by Judge Duvall, who had for many years served as First Comptroller of the treasury, and is clear and strong in favor of this doctrine. If the court has the power of deciding whether the auditor has properly rejected a claim, it may go farther. In the case of The Bank of the Metropolis v. The United States, (15 Peters, 377,) the court received proof far beyond the claims of the United States, but decided that it had not power to award a judgment against the government. Circuit courts have, in several instances, given judgment against the United States. The case of The United States v. Fitzgerald, was an ejectment suit brought in the circuit court of Louisiana, brought by the government to recover possession of land claimed by preëmption right by the occupant. The court held, that an equitable right was good against a legal claim of the United States, and enjoined the government against all further proceedings to disturb the occupant in his possession. On appeal, the supreme court said, (15 Peters, 467,) that the judgment of the court in Louisiana, being in the ordinary form in that estate, ought not to be disturbed.

The debt in this case has now been judicially proved. It is

now a judgment. The decision of the accounting officers has been overruled. We are entitled to the credit. Since July, 1847, there has been a large general appropriation, out of which the debt might and ought to be paid. But, at any rate, we are entitled to credit upon the books.

Congress has no power under the constitution to examine and pay claims. It is exclusively vested in the judiciary. If the courts of the United States have not power to compel the government to pay, ours is the only country in the world where that power does not exist in the judicial tribunals.

At common law, no judgment can be given for the defendant; but under the law of Pennsylvania, the defendant, by becoming a party to the record, has a right to a judgment.

Ransom H. Gillet, Solicitor of the Treasury, denied the jurisdiction of the court, and declined to appear.

CRANCH, C. J. As to so much of this petition as asks for a mandamus commanding the secretary to pay the money, it is sufficient to say, that there has been no specific appropriation of money to pay it; and no money can constitutionally be drawn from the treasury of the United States without such an appropriation.

And as to so much of the petition as asks for a mandamus commanding the secretary to cause a credit to the said James Reeside, to be entered upon the books of the Treasury Department, for the sum of $188,496 06, this court has no jurisdiction or authority to issue such a writ to the secretary of the treas ury; because there is no special law directing him to enter such a credit on the books of the treasury as there was in Kendall's case; and because it would command him to do an official executive act, in the performance of which he had a right to exercise judgment and discretion, and in which this court has no jurisdiction to guide and control him.

The cases of Marbury v. Madison, Kendall v. United States, Decatur v. Paulding and Brashear v. Mason, which were largely cited in McElrath v. McIntosh, (1 Law Rep. N. S. 399,) at the present term, are considered by this court as decisive of the present case.

The court therefore refuses to issue the mandamus as prayed.

Supreme Court of Vermont, Lamoille County, April T., 1848.

SPAULDING v. PRESTON.

The rights of sheriffs and executive officers of courts to seize counterfeit coin, &c., considered on the general grounds of preventive justice as well as of statute regulation.

When counterfeit coin has been seized under the direction of a prosecuting officer to be used as evidence against a person awaiting trial, and for the further purpose of preventing its circulation, an action of trover will not lie against the sheriff, especially if the owner fail to show that the coin was put into its present form without his knowledge, or at least against his consent.

Where the original taking of goods was unlawful, and a wrong which the courts will redress, an action of replevin will lie to relieve the owner of goods from irreparable loss by long delay.

The opinion of the court, embodying the important facts, was delivered by

REDFIELD, J. This is an action of trover, against the sheriff of Caledonia County, for eleven hundred pieces of German silver, of the precise size and thickness of Mexican dollars, and made in that form, for the purpose of being stamped and milled into counterfeit coin of that description. The defendant took them within his own county, from one Russell, who is shown by the case, to have been carrying them, at the time, to a place of manufacture, for the purpose of having them finished, so that he could put them in circulation, as genuine coin. They were originally taken from Russell, and are still detained, under the authority of the state's attorney of Caledonia county. Russell has been indicted, by the grand jury of that county, and the indictment is still pending there. These pieces of partly finished counterfeit coin are detained for the double purpose of being used, as evidence, upon the trial of Russell, and also of preventing their being put in circulation.

These are the important facts contained in the plea in bar, which was held bad, upon demurrer. We might say more upon this form of presenting the defence, if that point were material to the decision, or had been much insisted upon in the argument of the case. But as substantially the same facts were admitted upon the trial of the general issue, and are confessedly the important facts in the case, we should feel bound to open

the case, for the purpose of having them properly presented, where the party had mistaken his right to present them in the form of a plea in bar. We understand the law of pleading, under the old rules in England, to be, that such a defence, as the one here presented, is bad, in form, as amounting to the general issue. 1 Chit. Pl. 491.

But as it seems to have been expected we should determine the case, upon its merits, we proceed to state the additional fact, which was proved upon the trial of the general issue, that these pieces of counterfeit coin were, at the time of the seizure by the defendant, the property of one Foster, so far as property can exist in such a thing, and that Foster has, since the seizure, transferred his rights therein to the present plaintiff. It is not stated in the case, whether Foster, or the present plaintiff' were in fact conusant of the crime of Russell, or how, or aohy, they should have a claim to this "stuff," and not be participes with Russell. That is left to the natural and legal intendments, we suppose; upon the ground, doubtless, that it is useless to encumber a case with proof, where no intendment will be likely to prejudice the case, beyond its just deserts. The plaintiff, then, coming in under Foster, stands simply in his place. And as Foster claims property in a thing, in so "questionable a shape," without accounting for the unfortunate guise in which his claim is presented, we can only suppose, that no proof, in his power, would make the case more favorable for him. must be content, then, for the present, to be esteemed a particeps with Russell. If he in fact owned this metal, before it was cast in this mould, and can satisfactorily show, that it was put in its present form without his knowledge, or against his consent, it may avail him hereafter. But no such thing is pretended, even in argument, and what constitutes the extreme impudence, and indeed insult of the claim is, that it does not seem to be supposed, that such an inquiry is pertinent to be put to the plaintiff. The court below, the plaintiff seems to suppose, have so viewed the subject, in rendering a judgment for him, wherein they estimated for him the value of his property, upon some standard, either of its cost, or its utility for honest or fraudu lent purposes, and which, we know not. But as the sum recovered was less than $50, we suppose the plaintiff recovered nothing for the improved condition, in which he, or his agent,

He