#### Samuel B. Doane *et al.*Executors, *versus*Samuel Phillips. Solomon H. Currier *versus*Samuel Phillips.

Where a collector of the customs goes out of office in consequence of the expiration of the time for which he was appointed, the commissions to which he would have been entitled, on the receipt of all duties bonded by him, are to be equally divided between him and his successor who shall have collected the duties.

But a collector who is removed from office, is not entitled to any portion of tne commissions on duties bonded by him and collected by his successor.

Where a collector who had been removed from office was permitted by his successor to remain in the office *de facto,*for a few days, performing the duties and receiving the fees, it was *held,*that he was not entitled to demand of his successor any compensation for his services in the business of the office during that period.

The following facts were stated by the parties.

James Prince (of whose last will the plaintiffs, Doane and another, were executors,) was collector of the customs for the district of Newburyport for a long time previous to the 10th of January, 1829, at which time his commission expired. He was succeeded in that office by Currier, who received his appointment on the 22d of January, 1829, and remained in the office until removed therefrom, of which he received notice on the 22d of June, 1829. The defendant was appointed to succeed Currier, and on the 26th of the same June he gave notice of that fact to Currier, and suggested his desire to await the reasonable convenience of Currier, but that he was ready to enter on the duties of the office and to receive the papers, books and public property. The 1st of July following was fixed on for that purpose, and on that day Currier surrendered the books, &c., and the defendant then entered on the duties of the office.

When Currier was appointed collector, he received from Prince certain bonds which had been taken by Prince as collector, before the term of his office had expired. A part of these bonds, amounting to $ 19,654-10, were not due, and remained unpaid at the time when Currier was removed from office. The amount of bonds for duties taken by Currier, was $ 39,651-67. These bonds, together with those above mentioned for 19,654-10, amounting in the whole to $ 59 305-77, *228were delivered to the defendant at the til re when he took possession of the office.

*Nov. 10th.*

The commission allowed by law to the collector of the district of Newburyport, is three per cent on all moneys received on account of duties on importations and tonnage.

When Currier entered upon the duties of his office, and received the books and papers, he gave Prince a receipt promising to pay over to him when collected, one and a half per cent upon the amount of the bonds then delivered to him by Prince. And when Currier delivered the books and papers of the office to the defendant, he took from him a receipt as follows : — “ District and Port of Newburyport, July 1, 1829. I have this day received of S. H. Currier, Esq. the bonds of which the foregoing is a schedule, and for which, amounting to $ 59,305;77, I promise to account according to law, when collected. Samuel Phillips, Collector.”

Currier held the office of collector till the 1st of July, and performed the duties and received the fees of office. The de fendant received no fees of office and performed no official duty before that day.

The defendant collected the amount of the bonds delivered to him, and received the commission of three per cent thereon.

The plaintiffs, Doane and another, claim of the defendant one and a half per cent on the sum of $ 19,654-10, with interest from the time when it was received by the defendant.

The plaintiff, Currier, claims of the defendant three per cent on the sum of $39,651-67. He further claims the sum of $ 200 for making up the usual accounts and abstracts of *the*office to the 1st of July. The same number (about forty) would have been required of him had he relinquished the office on the 26th of June, and the same would have been required of the defendant from the 26th of June to the 1st of July.

A nonsuit or default was to be entered in either or both . actions, according to the opinion of the Court upon the foregoing facts.

*Saltonstall*and *J\Iarston,*for the plaintiffs,

cited Act of Congress, March 2, 1799, c. 129, § 4, which provides, 11 that whenever a collector shall die or resign, the commissions to which he would have been entitled, on the receipt of all duties *229bonded by him, shall be equally divided between the collector resigning, or the legal representative of such deceased collect- or, and his successor in office, whose duty it shall be to collect the same ; and for this purpose all the public or official books, papers and accounts, of the collector resigning "or deceased, shall be delivered over to such successor.” The case of Currier is not within this statute, and if he had a right to retain the bonds and collect them, then he is entitled to the whole commission. But if the Court should think that a removal from office is to be placed upon the same footing with resignation, then half of the commission should be paid to Currier. The commission is intended as a compensation not merely for receiving the money, but likewise for the services and responsibility of the collector in taking the bond.

*B. Merrill*and *Dunlap*(District Attorney of United States) on the other side,

denied that the plaintiff, Currier, could maintain any part of his claim against the defendant. It is only by virtue of the express provision of the statute that the commissions are divided in the case of resignation or death, which cast no blame on the party ; and there is good reason why the like provision should not have been extended to removals ; which are presumed to be made for malfeasance, incapacity, or other unfitness for the office.

They admitted that the case of the executors of Prince was precisely like that of *Bates*v. Drury, 4 Mason, 119, in which the commissions were divided, but they suggested that that de cisión savors of judicial legislation.

*Nov.*11th

Wilde J

delivered the opinion of the Court. In the case of *Doane et al.*v. *Phillips,*we are of opinion that the judgment of the court in *Bates*v. *Drury,*4 Mason, 119, is conclusive. The cases are precisely similar, and the reasons given by *Story*J. in delivering his opinion, in the latter case, are entirely satisfactory. It is true that these cases are not within the words of the statute of the United States, of March *2,*1799, c. 129, but they are within its obvious meaning, and the rule of construction in such case has been long established, and may be safely followed whenever the reason and intention of a statute can be clearly discerned ; and we think it may be mi fhe present case.

*230The case of *Currier*against the same defendant stands, we th nk, on different grounds. It is agreed that the plaintiff was removed from office, and in this particular it differs from the other case. This difference seems to us to have a material bearing on the construction of the statute, because the language of a statute is not to be enlarged or limited by construction, unless its object and plain meaning require it. That the legislature intended to provide for the distribution of commissions in cases like the present, cannot be affirmed with any degree of confidence ; on the contrary, we concur in the remark of *Story*J., in the case already referred to, “ that the case of removals, being presumed to be for good cause, was probably not thought fit, upon motives of policy, to be embraced in any universal rule.”

If such was not the intention of the legislature, it seems difficult to give a satisfactory reason for the omission to provide for such cases in express terms, as collectors have at all times been liable to be removed from office. The inference would seem to be, that when the act provides for all cases, except removals, to which the provision, as the law then was, could by possibility apply, this omission was intended by the legislature. But whether this inference be probable, or only doubtful, it is equally fatal to such an equitable construction of the statute, as would embrace the present case.

As to the small claim for services rendered by the plaintiff after he had notice of the defendant’s appointment, and before he relinquished his office, we think it quite impossible to support it. It is agreed that during the time he held the office, and performed its duties, he received the fees. The defendant was ready to enter on the duties of .his office when he no tified the plaintiff of his appointment, and it was postponed for a few days for the plaintiff’s convenience. While it was thus postponed, the plaintiff continued to act as collector, and was collector *de facto.*He was the agent of the United States, and not the agent of the defendant, and consequently can have no claim on him for services rendered in the business of the office.1

1

 See *United States*v. Pearce, *2*Sumner, 575.