# Kendall v. Stokes/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
44 U.S. 87
Kendall v. Stokes
THIS case was brought up, by writ of error, from the Circuit Court of the United States, for the district of Columbia, sitting for the county of Washington.
The Supreme Court of the United States having affirmed (12 Pet., 524) the decision of the Circuit Court, awarding a mandamus against Amos Kendall, application was made by Stokes, &c., to Kendall, that the sum of money mentioned in the proceedings should be carried to their credit on the books of the department. Kendall declined to interfere in the matter, upon the ground that the 'auditor' had charge of the books, and that he himself had no power to settle claims, and no money to pay them with. On the 30th of March, 1838, a peremptory mandamus was issued by the Circuit Court, commanding him to obey and execute the act of Congress immediately on the receipt of the writ, and certify perfect obedience to it on the 3d of April next.
On the 3d of April, Mr. Kendall addressed a letter to the court, saying that he had communicated the award of the solicitor of the Treasury to the auditor, and received from him official information that the balanced of said award had been entered to the credit of the claimants, on the books.
In October, 1839, Stokes, &c., brought a suit against Kendall. The declaration consisted of five counts, three of which were abandoned after a verdict and motion in arrest of judgment. The two remaining were the first and fifth.
The first count averred, in substance, that the plaintiffs, with Richard C. Stockton, deceased, under and in the name of said Richard, were contractors for the transportation of the mails of the United States, by virtue of certain contracts entered into between them and the late William T. Barry, then postmaster-general of the United States. That the said William T. Barry, as postmaster-general, did cause certain credits to be given, allowed, and entered in the books, accounts, and proper papers in the Post-office Department, in favor of the plaintiffs and said Richard, as such mail contractors, under and in the name of said Richard. That the defendant, on succeeding Mr. Barry in the office of postmaster-general, wrongfully, illegally, maliciously, and oppressively caused said items of account, so entered, and credited, and allowed, and upon which payments had been made, to be suspended on the books, accounts, and papers of the Post-office Department; and did cause said plaintiffs and said Richard, under and in the name of said Richard, to be charged on said books, papers, and accounts, with said several items and sums of money, amounting to $122,000.
The 5th count averred the passage of a private act of Congress entitled 'An act for the relief of Wm. B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore,' by which the solicitor of the Treasury was authorized and required to determine on the equity of the claims of them, or any of them, growing out of certain alleged contracts between them and Mr. Barry, and by which the postmaster-general was directed to credit them with such amounts as might be awarded, pursuant to the act. This count also averred the actual rendition of an award by Virgil Maxcy, then solicitor of the Treasury, for the sum of $162,727.05, in favor of Richard C. Stockton, as the representative of himself and the plaintiffs below, and the refusal of Mr. Kendall to comply fully with the terms of the award, by crediting them with the full amount awarded.
The cause came on for trial at November term, 1841, which resulted in a verdict for the plaintiffs.
After the rendition of the verdict aforesaid, the defendant produced the following certificate by the said jurors, and prayed the court to be permitted to have the same entered on the minutes of the court, to which the court assented.
'We, the jurors, empannelled in the case of William B. Stokes and others v. Amos Kendall, and in which case we have this day rendered our verdict for the plaintiffs for $11,000, do hereby certify that said verdict was not founded on any idea that the defendant performed the acts complained of by the plaintiffs, and for which we gave damages as above stated, with any intent other than a desire faithfully to perform the duties of his office of postmaster-general, and protect the public interests committed to his charge; but the said damages were given by us on the ground that the acts complained of were illegal, and that the said sum of $11,000 was the amount of actual damage to plaintiffs estimated by us to have resulted from said illegal acts.'
Upon the trial the defendant took three bills of exceptions.
The 1st exception was to the competency of the evidence to sustain the action. The evidence offered by the plaintiffs was:
1. A transcript of the record in the mandamus case.
2. The report of Virgil Maxcy, solicitor of the Treasury.
3. Sundry letters and documents.
4. Oral testimony relating to the partnership.
The defendant offered four prayers to the court, praying instructions to the jury that the defendant was not responsible to the plaintiffs in the right in which they then sued under the 1st count; that he was not liable under the 5th count for refusing to comply with so much of the award of the solicitor as he, on the ground of want of jurisdiction in the said solicitor, refused to comply with; that he was not liable for consequential damages; and that the plaintiffs had no joint right of action.
All of which prayers were refused by the court, to which refusal the defendant excepted.
2d Bill of Exceptions.
The defendant then offered in evidence sundry depositions and papers.
1. The depositions of Andrew Jackson, Martin Van Buren, and B. T. Butler.
2. Correspondence between Mr. Kendall and the attorney-general.
3. The attorney-general's opinion, Document No. 123, 26th Congress, 2d session, House of Rep. Ex. Doc. page 1010.
4. Letter from the solicitor of the Treasury.
5. Reports of post-office committees of Senate and House.
6. The evidence of Francis S. Key, Esq.
Upon all which evidence the defendant founded four prayers:
1. That plaintiffs were not contractors.
2. That defendant was not liable if he acted from a conviction that it was his official duty to set aside the extra allowances.
3. That he was not liable if he acted from a conviction that the solicitor had no lawful jurisdiction to audit and adjust the items, &c.
4. That he was not liable for any of his acts, if the jury believe that he acted with the bona fide intention to perform duly the duties of his office, and without malice or intention to injure and oppress the plaintiffs.
All of which prayers the court refused to grant, and to the refusal the defendant excepted.
3d Bill of Exceptions.
The plaintiffs offered evidence to prove their special expenses and losses, such as counsel-fees, tavern-bills, discounts, &c., to the admission of which evidence the defendant objected; but the court overruled the objection and allowed it to be given. To which overruling the defendant excepted.
The case came up upon all these grounds.
Dent and Jones, for the plaintiff in error.
Coxe, for defendants.
1. That the official acts complained of in the declaration amount to nothing more than a breach of contract, and a refusal to pay money due by contract and award.
2. That these acts, with what motives, aggravations, or consequences soever accompanied, lay no ground for an action, sounding in damages, as for an official or personal tort or misdemeanor.
3. But as the case is now presented by the record, it is a concessum, that the defendant's motives for the acts complained of were clear of all malice, self-interest, and intention to vex, harass, injure, or oppress the plaintiffs, and proceeded from no other intent than a desire faithfully to perform the duties of his office, and to protect the public interest committed to his charge; and that if the acts complained of were in truth illegal, or in any way a transgression of his public duties, (which is altogether denied,) they resulted from an honest mistake and misapprehension of the authority and duties of his office; consequently, the broad question is now presented, whether an honest misapprehension of the rights of the influence of honest mistake, and of those rights, under the infiuence of honest mistake, and in the manner and form appearing by the declaration and evidence in the cause, be an official or personal tort or misdemeanor. We maintain the negative of this question.
4. If the plaintiffs have shown, either in pleading or in evidence, any cause of action, still we except to all the evidence of special damage pretended to have been sustained by the plaintiffs, in consequence of the defendant's refusal to allow and pay them the several sums of money pretended to be due under their contract-such as discounts and usury paid by them for money borrowed, expenses of travel, large feees to counsel, tavern-bills, and other expenses incurred in pursuit of their claim against the Post-office Department. We maintain that the only measure of damages for withholding money due, (whether on public or private account,) is the legal interest on the sum due.
5. That all right of action (if any such ever existed, which is denied) for the pretended misfeasance complained of in the first count, was completely extinguished and barred by the act of Congress authorizing the solicitor of the Treasury to settle and adjust the claims of the plaintiffs and R. C. Stockton, or any of them, for the extra services, &c., in the act mentioned, and by the full and final settlement and adjustment of the same by the solicitor, as shown by the plaintiffs.
6. That all right of action (if any such ever existed, which is denied) for the pretended nonfeasance complained of in the 5th count, (to wit, the non-payment of a certain portion of the solicitor's award,) was extinguished and barred by the plaintiffs' election of their remedy by mandamus, and the result of the procedure on such mandamus, as shown by the plaintiffs.
7. That the defendant, as postmaster-general, had authority, and was prima facie justified, by the circumstances of the case, for both the acts of pretended misfeasance and nonfeasance complained of: 1st, for originally contesting their claims for the pretended extra services afterwards referred to the solicitor of the Treasury; and 2dly, for maintaining that the solicitor of the treasury had exceeded the scope of the authority committed to him by the act of Congress, in allowing certain claims not within the terms of the submission to his award, as defined in the act of Congress; and, consequently, for refusing to pay so much of the solicitor's award as allowed such inadmissible claims.
8. That there is a fatal misjoinder of parties in this action; inasmuch as the plaintiffs, by their own showing, both in pleading and in evidence, have no such joint rights of contract or action as they have sued on in this case.
9. That from their own exhibit of the original contracts, under which all the plaintiffs' claims arise, taken in connection with the acts of Congress relating to the premises, the plaintiffs' own case, upon their own showing, absolutely concludes against any such joint rights of contract and action as are asserted in the first count.
10. That from their own exhibit of the awards of the solicitor of the Treasury, referred to in their 5th count, their case, upon their own showing, equally concludes against such joint rights of action as are asserted in the 5th count.
Consequently, the evidence of O. B. Brown ought to have been rejected, as incompetent and inadmissible; and the court ought to have allowed the several instructions asked by the defendant in regard to such joint rights.
11. We maintain generally, and without exception, that the points of evidence, and of law, raised by the defendant in the course of the trial, and in arrest of judgment, (as set forth in the several bills of exceptions and motions in arrest of judgment, already referred to,) ought to have been sustained by the Circuit Court, and were erroneously overruled by that court.
Dent went largely into the history of the case, referring to many of the public documents which have been mentioned. He then took up the points, and contended that the act of 1825, (3 Story, 1985,) made the postmaster-general a disbursing officer of all the revenue of the department. See also 3 Story, 1630, the 4th section of the act of March 3d, 1817; 2 Story, 1091, 5th section of the act of April 21st, 1808; Gidley v. Palmerston, 7 J. B. Moo., 91, 108; 3 Brod. & B., 275; 7 Com. Law Rep., 434.
On the third point he cited 1 East, 555, 558, and 564, note; 11 Johns. (N. Y.), 114.
The fourth point he thought too clear to be discussed.
On the fifth and sixth points he contended that the plaintiffs were precluded from this action, by having already elected their remedy. 2 W. Bl., edition of 1828, 779, 827; 4 Rawle (Pa.), 287-299; 17 Pick. (Mass.), 7-14; 6 Wheat., 109; 1 Salk., 11; 2 Bos. & P., 71; 7 Johns. (N. Y.), 21; 8 Id., 384.
The evidence which the plaintiff introduced in this case is the same which they brought before the solicitor to obtain his award, and also in the mandamus case; and this may be shown under a plea of the general issue as well as under a plea in bar. Young v. Black, 7 Cranch, 565.
Coxe, for defendants in error, referred to numerous documents to show that there was no misjoinder of parties; that they had all been recognized as joint contractors. He denied that it was a concessum that there was no malice; on the contrary, it is averred in the declaration. He denied also that the merits of this case had ever been settled. They were not by the solicitor of the Treasury, whose province it was to decide on the legality or illegality of Mr. Kendall's conduct in suspending the payments. They were not settled in the mandamus case, which related to an entry which Mr. Kendall refused to make. The Circuit Court directed him to make it, and the Supreme Court affirmed the decision. 12 Pet., 609.
Having disposed of some preliminary objections, Mr. Coxe proceeded to discuss the liability of public officers to pay money withheld, and cited 6 T. R., 443; 3 Wils., 443; 2 Kane, 312; 6 Munf. (Va.), 271; 11 Mass., 350; 3 Wheat., 346; 2 Cranch, 175; 1 T. R., 493; 7 Mass., 282; 2 W. Bl., 1141; 5 Johns. (N. Y.), 282; 9 Id., 395; 13 Id., 141; 1 Cranch, 137; 10 Pet., Swartwout's case.
The defendants' conduct was illegal. See 15 Pet., case of Bank of Metropolis; 9 Cl. & F., 251, 278, 283; Lyndhurst's opinion, 284; Ld. Brougham's opinion, 287-303, as to malice; 310, Ld. Campbell's opinion.
Jones, in reply and conclusion, referred to several parts of the record to show that there was not such a partnership as would enable the plaintiffs to sue, and to other parts to show that malice in Mr. Kendall was wholly out of the case. This destroyed all claim for consequential damages.
He then discussed what constitutes an illegal act in a public officer, so as to make him liable in damages for withholding money, and referred to Story on Agency, 308, sect. 305; 1 Cranch, 345.
Upon what grounds actions ex delicto have been maintained against a public officer, he referred to 1 East, 562, 568; and to show what description and quality of officers are liable to this action, he referred to the case of Gidley v. Ld. Palmerston, 111.
If the action be really founded upon a form of contract, yet, being mixed up with tort, every defence, good against the form ex contractu, is good against the tort. 1 Esp., 172; 8 T. R., 335.
An action will lie against a public officer only when the duty to be performed is wholly ministerial, and never in a case where judgment is to be exercised. United States v. Bank of Metropolis, 15 Pet., 403.
As to the mandamus case, Mr. Kendall did not disobey, for the extra allowance extended only to the end of the first quarter of 1835.
Mr. Chief Justice TANEY delivered the opinion of the court.
The record in this case is very voluminous, and contains a great mass of testimony, and also many incidental questions of law not involving the merits of the case, which were raised and decided in the Circuit Court, and to which exceptions were taken by the plaintiffs in error. But both parties have expressed their desire that the controversy should now be terminated by the judgment of this court; and that the leading principles which must ultimately decide the rights of the parties should now be settled; and that the case should not be disposed of upon any technical or other objections which would leave it open to further litigation. In this view of the subject it is unnecessary to give a detailed statement of the proceedings in the court below. Such a statement would render this opinion needlessly tedious and complicated. We shall be better understood by a brief summary of the pleadings and evidence, together with the particular points upon which our decision turns; leaving unnoticed those parts of the record which can have no influence on the judgment we are about to give, nor vary in any degree the ultimate rights of the parties.
At the time of the trial and verdict in the Circuit Court the declaration contained five counts. But after the verdict was rendered, the plaintiffs in that court, with the leave of the court, entered a nolle prosequi upon the second, third, and fourth, and the judgment was entered on the first and the fifth. It is only of these two last mentioned counts, therefore, that it is necessary to speak. The verdict was a general one for the plaintiffs, and their damages assessed at $11,000.
The first count states that by virtue of certain contracts made with William T. Barry, while he was postmaster-general, and services performed under them, the plaintiffs on the 1st of May, 1835, were entitled to receive and have allowed to them the sum of $122,000, and that that sum was accordingly credited to them on the books of the Post-office Department; and that Amos Kendall, the defendant in the court below, afterwards became postmaster-general, and as such illegally and maliciously caused the items composing the said amount to be suspended on the books of the department, and the plaintiffs to be charged therewith: whereby they were greatly injured, and put to great expenses, and suffered in their business and credit.
The fifth count recites the act of Congress of July 2d, 1836, by which the solicitor of the Treasury was authorized to settle and adjust the claims of the plaintiffs for services rendered by them under contracts with William T. Barry, while he was postmaster-general, and which had been suspended by Amos Kendall, then postmaster-general, and to make them such allowances therefore as upon a full examination of all the evidence might seem right and according to principles of equity; and the postmaster-general directed to credit them with whatever sum or sums of money the solicitor should decide to be due to them, for or on account of such service or contract; and after this recital of the act of Congress, the plaintiffs proceed to aver that services had been performed by them under contracts with William T. Barry, while he was postmaster-general, on which their pay had been suspended by Amos Kendall, then postmaster-general, and that for these claims the solicitor of the Treasury allowed the plaintiffs large sums of money amounting to $162,727.05; that the defendant had notice of the premises, and that it became his duty as postmaster-general to credit the plaintiffs with this sum; but that he illegally and maliciously refused to give the credit, by reason whereof the plaintiffs were subjected to great loss, their credit impaired, and they were obliged to incur heavy expenses in prosecuting their rights, to their damage in the sum of $100,000.
The defendant plead not guilty, upon which issue was joined.
At the trial, the plaintiffs offered in evidence the record of the proceedings in the mandamus which issued from the Circuit Court upon their relation on the 7th day of June, 1837, commanding the said Amos Kendall to enter the credit for the sum awarded by the solicitor. It is needless to state at large the proceedings in that suit, as they are sufficiently set forth in the report of the case in 12 Pet., 524; the judgment of the Circuit Court awarding a peremptory mandamus having been brought by writ of error before the Supreme Court, and there affirmed at January term, 1838. Various papers and letters were also offered in evidence by the plaintiffs to show that the allowances mentioned in the declaration had been suspended by the defendant; and that after the award of the solicitor, and before the original mandamus issued, he had refused to credit $39,472.47, part of the sum awarded, upon the ground that the items composing it were not a part of the subject-matter referred; and upon which, as the defendant insisted, the solicitor had no right to award. Other papers and letters were also offered showing that after the judgment of the Circuit Court awarding a peremptory mandamus had been affirmed in the Supreme Court, the plaintiffs demanded a credit for the above-mentioned balance on the 23d of March, 1838: that the defendant declined entering the credit, alleging that a recent change in the post-office law had placed the books and accounts of the department in the custody of the auditor; and some difficulty having arisen on this point, the Circuit Court, on the 30th of March, 1838, issued a mandamus commanding the postmaster-general to enter the credit on the books of the department; and to this writ the defendant made return on the 3d of April, 1838, that the said credit had been entered by the auditor who had the legal custody of the books.
The whole of this evidence was objected to by the defendant, but the objection was overruled and the testimony given to the jury. And upon the evidence so offered by the plaintiffs, before any evidence was produced on his part, the defendant moved for the following instruction from the court:
'The defendant, upon each and every of the plaintiffs' said counts, severally and successively prayed the opinion of the court, and their instruction to the jury that the evidence so as aforesaid produced and given on the part of the plaintiffs, so far as the same is competent to sustain such count, is not competent and sufficient to be left to the jury as evidence of any act or acts done or omitted or refused to be done by the defendant, which legally laid him liable to the plaintiffs in this action, under such count, for the consequential damages claimed by the plaintiffs in such count.' This instruction was refused and the defendant excepted.
The question presented to the court by this motion in substance was this: Had the plaintiffs upon the evidence adduced by them shown themselves entitled in point of law to maintain their action for the causes stated in their declaration upon the breaches therein assigned, assuming that the jury believed the testimony to be true?
The instruction asked for was in the nature of a demurrer to the evidence, and in modern practice has, in some of the states, taken the place of it. In the Maryland courts, from which the Circuit Court borrowed its practice, a prayer of this description at the time of the cession of the District and for a long time before, was a familiar proceeding, and a demurrer to evidence seldom, if ever, resorted to. And the refusal of the court was equivalent to an instruction that the plaintiffs had shown such a cause of action as would authorize the jury, if they believed the evidence, to find a verdict in favor of the plaintiffs, and to assess damages against the defendant for the causes of action stated in the declaration.
Now the cause of action stated in the first count is the suspension, by the defendant, of the allowances made by his predecessor in office; and of the recharge of sums with which the plaintiffs had been credited by Mr. Barry when he was the postmaster-general. And it appeared in evidence, by the proceedings in the mandamus, that the plaintiffs being unable to settle with the defendant the dispute between them on the subject, they applied to Congress for relief; that upon this application a law was passed referring the matter to the solicitor of the treasury, with directions that he should inquire into, and determine the equity of these claims, and make them such allowances therefor as might seem right according to the principles of equity; and that the postmaster-general should credit them with whatever sums of money, if any, the solicitor should decide to be due; that the plaintiffs assented to this reference, and offered evidence before the solicitor that they were entitled to the allowances and credits claimed by them; and that, from the conduct of the postmaster-general, in suspending and recharging these allowances and credits, they had been compelled to pay a large amount in discounts and interest, in order to carry on their business; and that the solicitor had finally determined in favor of their claims, and awarded to them the sum hereinbefore mentioned, giving them, as appears in his report to Congress, interest on the money withheld from them; and also, that, before this suit was brought, they had obtained a credit on the books of the department for the whole sum awarded by the solicitor.
Assuming, for the sake of the argument, that an action might in the first instance have been sustained against the postmaster-general, can the plaintiffs still support a suit upon the original cause of action? It was not a controversy between the plaintiffs and Amos Kendall as a private individual, but between them and a public officer acting for and on behalf of the United States. If they had sustained damage, it was the consequence of his act, and the question of damages was necessarily referred with the subject-matter in controversy, out of which that question arose. It was an incident to the principal matters referred, and therefore within the scope of the reference; and it is not material to inquire whether damages for the detention of the money were claimed or not, or allowed or not. In point of fact, however, the plaintiffs did claim interest on the money withheld as a damage sustained from the conduct of the postmaster-general, and offered proof before the solicitor of the amount of discounts and interest they had been compelled to pay; and, moreover, were allowed, in the award, a large sum on that account, which was paid to them as well as the principal sum. The question, then, on the first count is, can a party, after a reference, an award, and the receipt of the money awarded, maintain a suit on the original cause of action upon the ground that he had not proved, before the referee, all the damages he had sustained? or that his damage exceeded the amount which the arbitrator awarded? We think not. The rule on that subject is well settled. It has been decided in many cases, and is clearly stated in Dunn v. Murray, 9 Barn. & C., 780. The plaintiffs, upon their own showing, therefore, were not entitled to maintain their action of the first count, and the Circuit Court ought so to have directed the jury.
The judgment upon this court is also liable to another objection equally fatal. The acts complained of were not what the law terms ministerial, but were official acts done by the defendant in his character of postmaster-general. The declaration, it is true, charges that they were maliciously done, but that was not the ground upon which the Circuit Court sustained the action either on this count or the fifth. For, among other instructions moved for on behalf of the defendant, the court were requested to direct the jury:
'That, if they found from the evidence that the postmastergeneral acted from the conviction that he had lawful power and authority as postmaster-general to set aside the extra allowances made by his predecessor, and to suspend and recharge the same, and from a conviction that it was his official duty to do so; and if the plaintiffs suffered no injury from such official act, but the inconveniences necessarily resulting therefrom, that the defendant was not liable.'
This instruction was refused; the court thereby in effect giving the jury to understand that however correct and praiseworthy the motives of the officer might be, he was still liable to the action, and chargeable with damages.
We are not aware of any case in England or in this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual, has been held liable to an action for an error of judgment. The postmaster-general had undoubtedly the right to examine into this account, in order to ascertain whether there were any errors in it which he was authorized to correct, and whether the allowances had in fact been made by Mr. Barry; and he had a right to suspend these items until he made his examination and formed his judgment. It repeatedly and unavoidably happens, in transactions with the government, that money due to an individual is withheld from him for a time, and payment suspended in order to afford an opportunity for a more thorough examination. Sometimes erroneous constructions of the law may lead to the final rejection of a claim in cases where it ought to be allowed. But a public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion; even although an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs. It is unnecessary, we think, to refer to the many cases by which this doctrine has been established. It was fully recognized in the case of Gidley, Exec. of Holland v. Ld. Palmerston, 7 J. B. Moo., 91, 3 Brod. & B., 275.
The case in 9 Cl. & F., 251, recently decided in England, in the House of Lords, has been much relied on in the argument for the defendant in error. But upon an examination of that case it will be found that it had been decided by the Court of Sessions in Scotland, in a former suit between the same parties, that the act complained of was a mere ministerial act which the party was bound to perform; and that this judgment had been affirmed in the house of Lords. And the action against the party, for refusing to do the act, was maintained, not upon the ground only that it was ministerial, but because it had been decided to be such by the highest judicial tribunal known to the laws of Great Britain. The refusal for which the suit was brought took place after this decision; and the learned Lords, by whom the case was decided, held that the act of refusal, under such circumstances, was to be regarded as wilful, and with knowledge; that the refusal to obey the lawful decree of a court of justice was a wrong for which the party, who had sustained injury by it, might maintain an action, and recover damages against the wrongdoer. This case, therefore, is in no respect in conflict with the principles above stated; nor with the rule laid down in the case of Gidley v. Ld. Palmerston.
In the case before us the settlement of the accounts of the plaintiffs properly belonged to the Post-office Department, of which the defendant was the head. As the law then stood it was his duty to exercise his judgment upon them. He committed an error in supposing that he had a right to set aside allowances for services rendered upon which his predecessor in office had finally decided. But as the case admits that he acted from a sense of public duty and without malice, his mistake in a matter properly belonging to the department over which he presided can give no cause of action against him.
We proceed to the fifth count. But before we examine the cause of action there stated, it will be proper to advert to the principles settled by this court in the case of the mandamus hereinbefore referred to. The court in that case, speaking of the nature and character of the proceeding by mandamus, which had been fully argued at the bar, said that it was an action or suit brought in a court of justice, asserting a right, and prosecuted according to the forms of judicial proceeding; and that a party was entitled to it when there was no other adequate remedy; and that although in the case then before them the plaintiffs in the court below might have brought their action against the defendant for damages on account of his refusal to give the credit directed by the act of Congress, yet as that remedy might not be adequate to afford redress, they were, as a matter of right, entitled to pursue the remedy by mandamus.
Now, the former case was between these same parties, and the wrong then complained of by the plaintiffs, as well as in the case before us on the fifth count, was the refusal of the defendant to enter a credit on the books of the Post-office Department for the amount awarded by the solicitor. In other words, it was for the refusal to pay them a sum of money to which they were lawfully entitled. The credit on the books was nothing more than the form in which the act of Congress, referring the dispute to the solicitor, directed the payment to be made. For the object and effect of that entry was to discharge the plaintiffs from so much money, if on other accounts they were debtors to that amount; and if no other debt was due from them to the United States, the credit entitled them to receive at once from the government the amount credited. The action of mandamus was brought to recover it, and the plaintiffs show by their evidence that they did recover it in that suit. The gist of the action in that case was the breach of duty in not entering the credit, and it was assigned by the plaintiffs as their cause of action. The cause of action in the present case is the same; and the breach here assigned, as well as in the former case, is the refusal of the defendant to enter this credit. The evidence to prove the plaintiffs' cause of action is also identical in both actions. Indeed, the record of the proceedings in the mandamus is the testimony relied on to show the refusal of the postmaster-general, and the circumstances under which he refused, and the reasons he assigned for it. But where a party has a choice of remedies for a wrong done to him, and he elects one, and proceeds to judgment, and obtains the fruits of his judgment, can he, in any case, afterwards proceed in another suit for the same cause of action? It is true that in the suit by mandamus the plaintiffs could recover nothing beyond the amount awarded. But they knew that, when they elected the remedy. If the goods of a party are forcibly taken away under circumstances of violence and aggravation, he may bring trespass, and in that form of action recover not only the value of the property, but also what are called vindictive damages, that is, such damages as the jury may think proper to give to punish the wrongdoer. But if, instead of an action of trespass he elects to bring trover, where he can recover only the value of the property, it never has been supposed that, after having prosecuted the suit to judgment and received the damages awarded him, he can then bring trespass upon the ground that he could not in the action of trover give evidence of the circumstance of aggravation, which entitled him to demand vindictive damages.
The same principle is involved here. The plaintiffs show that they have sued for and recovered in the mandamus suit the full amount of the award; and having recovered the debt they now bring another suit upon the same cause of action, because in the former one they could not recover damages for the detention of the money. The law does not permit a party to be twice harassed for the same cause of action; nor suffer a plaintiff to proceed in one suit to recover the principal sum of money, and then support another to recover damages for the detention. This principle will be fount to be fully recognised in 2 Bl. Rep., 830, 831; 5 Co., 61, Sparry's case; Com. Dig. tit. Action, K., 3. And in the case of Moses v. Macfarlan, 2 Burr., 1010, Ld. Mansfield held that the plaintiff having a right to bring an action of assumpsit for money had and received to his use or a special action on the case on an agreement, and having made his election by bringing assumpsit, a recovery in that action would bar one on the agreement, although in the latter he could not only recover the money claimed in the action of assumpsit, but also the costs and expenses he had been put to. The case before us falls directly within the rule stated by Ld. Mansfield. another remedy, which was incomplete and inadequate, he abandoned it by applying for and obtaining the mandamus. It is treated both by him and the court as no remedy. Such was obviously the meaning of the Supreme Court in the opinion delivered in the former suit between these parties, where they speak of the action on the case, and give him the mandamus, because the other form of action was inadequate to redress the injury, and they would not therefore require the plaintiffs to pursue it. And they speak of the action on the case as an alternative remedy; not as accumulative and in addition to the mandamus. In the case in 9 Clark & F., 251, hereinbefore mentioned upon another point, the attorney-general in his argument said that no other action would lie in any case where the party was entitled to a mandamus. And Ld. Campbell, in giving his judgment, said that this proposition was not universally true; and at any rate applied only to the original grant of the mandamus, and not to the remedy for disobeying it; and that no case had been cited to show that an action would not lie for disobedience to the judgment of the court. This remark upon the proposition stated by the attorney-general shows clearly that in his judgment you could not resort to a mandamus and to an action on the case also for the same thing. If the postmaster-general had refused to obey the mandamus, then indeed an action on the case might have been maintained against him. But the present suit is not brought on that ground. No question is presented here as to the necessity of pleading a former recovery in bar, nor as to the right to offer it in evidence upon the general issue. The point in the Circuit Court did not arise upon the pleading of the defendant, nor upon evidence offered by him; but upon the case made by the plaintiffs, in which, by the same evidence that proved their original cause of action, they also proved that they had already sued the defendant upon it, and recovered a judgment, which had been satisfied before this suit was brought. And we think upon such evidence the instruction first above mentioned ought to have been given on this (the fifth) count, as it appeared by the plaintiffs' own showing that they had already recovered satisfaction for the injury complained of in their declaration.
The case before us is altogether unlike the cases referred to in the argument, where, after a party has been admitted or restored to an office, he has maintained an action of assumpsit or case to recover the emoluments which had been received by another, or of which he had been deprived during the time of his exclusion. In those cases the cause of action in the mandamus was the exclusion from office; and the suit afterwards brought was to recover the emoluments and profits to which his admission or restoration to office showed him to have been legally entitled. The action of assumpsit or case would not have restored him to the office, nor have secured his right to the profits. But in the case before the court, if this action had been resorted to in the first instance, instead of the mandamus, the plaintiffs could have recovered the amount due on the award, and the damages arising from its unlawful detention must have been assessed and recovered in the same verdict. Clearly, they could not have maintained one action on the case for the amount due, and then brought another to recover the damages; and this, not because both were actions on the case, but because they could not be permitted to harass the defendant with two suits for the same thing, no matter by what name the actions may be technically called, nor whether both are actions on the case, or one of them called a mandamus.
But if this action could have been maintained, we think that most of the evidence admitted by the Circuit Court to enhance the damages ought not to have been received. It consisted chiefly of discounts and interest paid by the plaintiffs before the award of the solicitor, and of expenses on journeys and tavern bills, and fees paid to counsel for prosecuting their claim before Congress and the courts. It appears by the record that before this evidence was offered the court had instructed the jury, that malice on the part of the defendant was not necessary to support the action; and it appears also that the jury, which found the verdict and assessed the damages, declared that their verdict was not founded on any idea that the defendant did the acts complained of, and for which they gave the damages of $11,000, with any intent other than a desire faithfully to perform the duties of his office of postmaster-general, and to protect the public interests committed to his charge, and that the damages were given on the ground that his acts were illegal, and that the sum given was the amount of the actual damage estimated to have resulted from his illegal acts.
We have already said that although this action is in form for a tort, yet in substance and in truth it is an action for the non-payment of money. And upon the principles upon which it was supported by the court, and decided by the jury, if there had been no proceeding by mandamus to bar the action, the legal measure of damages upon the fifth count would undoubtedly have been the amount due on the award, with interest upon it.
The testimony, however, appears to have been offered chiefly under the first count, because the items for interest paid, and travelling and tavern expenses, for the most part, bear dates before the award, and also a portion of the fees of counsel. The evidence was certainly inadmissible under this count, since, for the reasons already given, no action could be maintained upon it, if there had been no previous proceeding by mandamus, and consequently no damages could be recovered upon it. But independently of this consideration, and even if the action could have been sustained, there are insuperable objections to the admission of this testimony. In the first place, no special damages are laid in the declaration; and in that form of pleading no damages are recoverable, but such as the law implies to have accrued from the wrong complained of; 1 Chit. Pl., 385: and certainly the law does not imply damages of the description above stated. But we think the evidence was not admissible in any form of pleading. In the case of Hathaway v. Barrow, 1 Campb., 151, in an action on the case for a conspiracy to prevent the plaintiff from obtaining his certificate under a commission of bankruptcy, the court refused to receive evidence of extra costs incurred by the plaintiff in a petition before the chancellor. In the case of Jenkins v. Biddulph, 4 Bingh., 160, in an action against a sheriff for a false return, the court said they were clearly of opinion that the plaintiff was not entitled to recover the extra costs he had paid; that, as between the attorneys and their clients, the case might be different, because the attorney might have special instructions, which may warrant him in incurring the extra cost, but that in a case like the one before them the plaintiff could only claim such costs as the prothonotary had taxed. And in the case of Grace v. Morgan, 2 Bingh. N. C., 534, in an action for a vexatious and excessive distress, the plaintiff was not allowed to recover as damages the extra costs in an action of replevin which the plaintiff had brought for the goods distrained; and the case in 1 Stark., 306, in which a contrary principle had been adopted, was overruled.
These were stronger cases for extra costs than the one before us. The admission of the testimony in relation to the largest item in these charges, that is, for interest paid by the plaintiffs, amounting to more than $9000, is still more objectionable. For it appears from the statement in the exception that the very same account had been laid before the solicitor, and had induced him, as he states in his report to Congress, to make the plaintiffs an allowance in his award for interest, amounting to $6893.93. And to admit this evidence again in this suit was to enable the plaintiff to recover twice for the same thing; and after having received from the United States what was deemed by the referee a just compensation for this item of damage, to recover it over again from the defendant.
There are several other questions stated in the record, but it is needless to remark upon them, as the opinions already expressed dispose of the whole case. The judgment of the Circuit Court must be reversed.
[For the dissenting opinion of Mr. Justice McLEAN, see App., p. 789.]

## Notes

* ↑ APPLIED. Teal v. Felton, 12 How., 291. CITED. Garland v. Davis, 4 How., 149.
* ↑ That one cause of action cannot be split up and sued upon in several suits, is well established, and it is now only a familiar rule. Markham v. Middleton, 2 Str., 1259; Miller v. Covert, 1 Wend. (N. Y), 487; Stevens v. Lockwood, 13 Id., 644; Guernsey v. Carver, 8 Id., 492; s. c. 24 Am. Dec., 60; Philips v. Berick, 16 Johns. (N. Y.), 136; s. c. 8 Am. Dec., 299; Secor v. Sturges, 16 N. Y., 548; Badger v. Titcomb, 15 Pick. (Mass.), 409; Warren v. Comings, 6 Cush. (Mass.), 103; Crosby v. Jerolomon, 37 Ind., 277; Dutton v. Shaw, 35 Mich., 431; Turner v. Plowden, 5 Gill. & J. (Md.), 52; S.C.. 23 Am. Dec., 596; Goodrich v. Gale, 97 Mass., 15; Dalton v. Bentley, 15 Ill., 420; Chinn v. Hamilton, Hempst., 438.
* Whenever, therefore, a mandamus is applied for, it is upon the ground that he cannot obtain redress in any other form of proceeding. And to allow him to bring another action for the very same cause after he has obtained the benefit of the mandamus, would not only be harassing the defendant with two suits for the same thing, but would be inconsistent with the grounds upon which he asked for the mandamus, and inconsistent also with the decision of the court which awarded it. If he had
In addition to the authorities cited, see Trask v. Railroad, 2 Allen (Mass.), 331; Hodsall v. Stallebras, 11 Ad. & E., 301; Smith v. Great Western R. Co., 6 U. C. C. P., 156; Watson v. Van Meter, 43 Iowa, 76; Fowle v. New Haven, 107 Mass., 352; Whitney v. Town of Clarendon, 18 Vt., 252; Smith v. Way, 9 Allen (Mass.), 472; Clegg v. Dearden, 12 Q. B., 576; Hitchin v. Campbell, 2 W. Bl., 827; s. c. 3 Wils., 304.
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