Erwin's Lessee v. Dundas. 4 H. [ *79 ] * too, who from their age and situation in life, will not unfrequently be the least qualified to understand and protect these interests, being the children of the deceased defendant. This writ of scire facias is also made necessary, in order to secure the judgment in cases where the plaintiff has neglected to take out execution within the year. And yet it has always been held, that, if taken out after the year, the sale under it is valid, and the title of the purchaser protected. The execution is not void, but voidable, and may be regularly enforced, unless set aside on motion. In analogy to this course of decision, it has been argued that an execution issued after the death of the party, should not be consid ered void, and the sale under it a nullity, and that the only remedy should be on a motion to set it aside. Before the Statute Westm. 2, already referred to, (c. 45,) if the plaintiff had neglected to take out execution within the year, his only remedy was an action of debt on the judgment. The law presumed it had been satisfied, and therefore drove the plaintiff to a new original. 2 Tidd, 1102; 1 Bing. on Ex. 123, n. This statute extended to him the writ of scire facias, by means of which the judgment could be enforced after the year by execution, and as the writ could thus be issued after the year by a scire facias, the judges held, if issued without, and the defendant did not interpose and set it aside, it was an implied admission that the judgment was unsatisfied, and existed in full force. The issuing, under the circumstances, was regarded simply as an irregularity which it was competent for the party defendant to waive. It is apparent that the analogy between this class of cases and the one under consideration, is exceedingly remote and feeble, and that they stand upon different and distinct grounds, and the conclusions arrived at upon substantially different and distinct considerations. Another ground has been urged in support of the sale in this case, which deserves notice. It has been argued that the grantees of lands sold on a judgment against the grantor, or previous owner, through whom the title was derived, where the sale confessedly would be valid, stand upon the same footing as the heirs or devisees in the case of a sale after the death of the defendant. But the distinction between the two cases is manifest. In the first place, the grantee, in making the purchase, is presumed to have made the proper inquiry into the nature and validity of his title, and therefore to have known of the existence of the incumbrance, and to have taken the necessary precautionary measures against it. Gratiot v. United States. 4 H. The sale on the execution cannot take him by surprise, with ordinary attention to his rights. And, in the second place, the defendant in the execution, not the grantee, is the party most deeply interested in the [* 80 ] proceeding; for if his grantee, or any succeeding grantee under the title, should be dispossessed by reason of a sale on a prior incumbrance by judgment, he, the defendant in the execution, would be answerable over upon his covenants of title. The grantee, therefore, is neither exposed to a sale under the judg ment by surprise, nor is he the party usually interested in the sale. Upon the whole, without pursuing the examination further, we are satisfied that, according to the settled principles of the common law, and which are founded upon the most cogent and satisfactory grounds, the execution having issued and bearing teste in this case, after the death of one of the defendants, it was irregular and void; and that the sale and conveyance of the real estate of the deceased under it to the plaintiff, was a nullity. We may further add, that since this suit was commenced, and while it was pending in the circuit court of the United States, the highest court in the State of Alabama have had the same question before them, and have arrived at a similar result. 6 Ala. 657. Judgment of the circuit court affirmed. 9 H. 83; 13 H. 287; 2 Wal. 313; 4 Wal. 237. CHARLES GRATIOT, Plaintiff in Error, v. THE UNITED STATES. 4 H. 80. The engineer superintending a military work, is liable, by the army regulations, to be required to act in the disbursement of public money, when there is no disbursing agent for that work; a specific compensation is provided therefor; he cannot charge a commission upon such disbursements. Whether the plaintiff in error could be entitled to any extra compensation for extra services as chief of the corps of engineers at Washington, is a question which did not arise, because there was not evidence of the amount or value of such services. The army regulations, made pursuant to the authority conferred by congress, have the force of law. ERROR to the circuit court of the United States for the district of Missouri. The case was before this court, and is reported 15 Pet. 336. The instructions requested, given, and refused, which were excepted to, were as follows: Whereupon the court instructed the jury, 1. That the [* 93 ] defendant is not entitled to any commission on the sums by him turned over to James Maurice, charged by him on account of Fort Calhoun and Fort Monroe, and rejected by the accounting offi cers of the treasury; (1.) because defendant received $4.00 each day Gratiot v. United States. 4 H. for his attendance upon the above works, by a former allowance, and by the one now ordered; (2.) because the only evidence is what the transcript introduced by the plaintiff, furnishes; and such evidence is not sufficient to authorize any commission to be allowed merely for turning over to an accounting officer the moneys. 2. Nor is the defendant entitled to any credit for commissions or disbursements on account of appropriations for fortifications as charged by him. Of this item, the only evidence in the cause is that furnished by the transcript introduced by the United States, as the principal evidence on which the defendant is charged, and the evidence thereby furnished, is not sufficient to authorize the jury to allow the defendant the credit claimed. 3. Nor is the defendant entitled to commissions for disbursements on account of contingencies and repairs of fortifications as charged by him, there being no evidence on this item of charge, except the abovenamed transcript, which evidence is not sufficient to authorize the jury to allow any credit for this item. 4. Nor is the defendant entitled to any credit for commissions as charged, upon any moneys collected of Jacob Lewis and Co. [94] and Samuel Cooper, or either of them; because the abovenamed transcript is the only evidence in the cause to establish this charge against the United States, and such evidence is not sufficient. 5. Nor is the defendant entitled to commissions as charged by him on account of sales of public property, there being no evidence but the foregoing transcript to establish the charge, which evidence is not sufficient. In the five cases above, there is no evidence to warrant the credit claimed in either case. 6. The services of the defendant, while chief engineer, charged with the duties of the engineer department, in conducting the affairs connected with the civil works of internal improvement carried on by the United States, are not extra-official services for which he is entitled to credit in this action. 7. There is no evidence that the defendant performed any extra. official service in conducting the affairs connected with the execution of the act of congress of 14th July, 1832,' to provide for the taking of certain observations preparatory to the adjustment of the northern boundary line of the State of Ohio. 8. The services alleged to have been performed by the defendant at one of the desks or bureaux of the war department, the claims to which are specified in an account dated March 23, 1841, and ap 14 Stats. at Large, 596. Gratiot v. United States. 4 H. pended to Benjamin Fowler's deposition, taken March 16, 1842, if such services were performed at the bureau of the chief engineer, and professedly in that capacity, they were among the duties appertaining to the office, and such as the defendant was bound to perform as chief engineer, without being entitled to any extra compensation above his pay and emoluments as a brigadier-general in the army of the United States. And as to items numbered from one to twentytwo, in the same account, for examining and reporting on various subjects, for which the defendant claims extra-official compensation, his evidence, and the evidence of the United States, show them to have been examinations and reports on matters appertaining to the office of chief engineer. So are the reports on their face, so far as they have been given in evidence, nor is there any evidence in any degree to the contrary. To sustain some of them, no evidence whatever is offered; neither for making those in regard to which evidence has been offered, nor for such in regard to which no evidence has been offered, can the defendant claim extra compensation. To the giving of the eight instructions above set forth, the defendant, by his counsel, excepted. The defendant, by his counsel, then prayed the court to instruct the jury as follows: 1. That under the first count of the declaration, the plain tiff is not entitled to recover against the defendant for [95] any money received by him in any office or capacity other than chief engineer. Which instruction was given by the court. 2. That under the second count of the declaration, the plaintiff is not entitled to recover against the defendant for any money received by him in any office or capacity not mentioned in the bill of particulars of demands, furnished and filed by the plaintiff under that count, nor for any money which may have been received by the defendant at any other time than that mentioned in said bill of particulars, that is, the year 1839. This last instruction was refused by the court, because there was no order made by the court on the plaintiff to furnish a bill of particulars, and on the memorandum furnished voluntarily to the defendant's counsel the court did not act, and might not have acted, if required to do so, under the circumstances, this being a matter of discretion. 3. That if the jury find, from the evidence, that the defendant performed any of the services for which he has charged in the last item of his account under the direction of the President or secretary of war, and that such services were neither military nor civil engineer. Gratiot v. United States. 4 H. ing, he is entitled to compensation for such services as a set-off in this action. This last instruction was refused by the court. 4. That if the jury find, from the evidence, that the defendant performed any of the services in the item of his account appended to Benjamin Fowler's deposition under the direction of the President or secretary of war, and that such services were not enjoined by the army regulations, the defendant is entitled to compensation for such services as a set-off in this action. This last instruction was refused by the court, and the refusal reduced to writing in the following words: "This instruction is refused, and the eighth instruction, given on the part of the United States, is referred to as embracing the whole subject-matter. The court is furthermore of opinion, that the Presi dent or secretary could well refer to the chief engineer any matter for report, &c., which appertained to the particular service devolving on the engineer department, in cases where congress, or either house, by law or resolution, required information from the President on that particular subject, aside from any injunction by the army regulations, and therefore the instruction cannot be given in the terms it is asked." 5. That if the jury find, from the evidence, that the defendant, by the direction of the President or of the secretary of war, performed any of the services charged for in the last item of his account, being the said item attached to Fowler's deposition, and that the services so rendered were out of the limits of his official duties [ *96] *as chief engineer, he is entitled to compensation for such extra services, as a set-off in this action. This last instruction was refused by the court, and the refusal was reduced to writing, in the following words: "The court refuses this instruction, because the whole evidence in the cause, without any exception, is written evidence, which the court is called on to construe and apply, and not the jury, and from such evidence to ascertain, as matter of law, what were the defendant's duties and acts; and taking all the evidence, and construing it the most favorably for the defendant, none is adduced showing, or tending to show, the defendant performed any service not appertaining to his station as chief engineer; and for the proper instruction on the item referred to, the eighth instruction on part of the United States, on this item, is to govern the jury. "If for no other reason, this instruction would be refused, because the said eighth instruction concludes the whole matter. There is no fact, therefore, to which this instruction could apply, and it again refers the matters of law to the jury, what the chief engineer's official |