1872. Received of A. R. Howe, Treasurer Mississippi Levee Board District No. 1, $47,800, on account of work on levee, the same being in full of all demands to date." The plaintiffs in their bill allege that this receipt was fraudulently and oppressively extorted by the levee board, and was signed by the plaintiffs under protest. But the only evidence to support their allegation is the testimony of Stansell himself, and he on cross-examination admitted that he did not know much about the matter, as Partee attended to the money transactions of the firm; and his testimony is met and controlled by the explicit denial in the answer of the board upon the oath of two of its members, as well as by the recitals of an agreement under seal, made between the board of the first part and the plaintiffs of the second part on the fourth of October, 1872, the important portions of which are as follows:

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Whereas, said party of the first part have heretofore made full and complete settlement for all work done on said levee by said party of the second part, as evidenced by their receipt acknowledging the same; and said party of the second part do now come forward and complain that injustice was done them in said settlement; and it being the desire of the party of the first part to do full justice to all men,-it is hereby agreed that the party of the second part shall designate an engineer, who shall proceed with the chief engineer of this board to measure all work done by said party of the second part on said levee, and render to the parties to this agreement an estimate of the amount due to the party of the second part for such work, according to the contracts entered into for the completion of the same. And it is further agreed that, should said estimate exceed the estimate made by the special engineer of this board in the month of June, 1872, the party of the first part shall pay to said Partee & Stansell, party of the second part, the amount of such excess, and all the expenses of this measurement shall be borne by the board. But if the said estimate shall be less than the estimate of the said special engineer in June, 1872, then said party of the second part shall refund to said party of the first part the amount of such deficit, and pay all the expenses of this measurement." "It is further agreed that the party of the second part shall designate an engineer, which engineer shall suggest a third engineer, who shall be acceptable to the chief engineer of this board, and the said engineers so selected shall, with the chief engineer of this board, constitute a board of arbitrament for the adjustment of all questions of difference, the agreement of any two to be final. In the adjustment of questions pertaining to this measurement, the contractors shall have the privilege of introducing all proper evidence, oral or written, of notes, profiles, or other evidence; which testimony may be rebutted by the president of the board,-this testimony being allowed to give the engineer information as to the fills or any other fact not perceptible to the engineers; to which testimony the engineers shall give such weight as they may think the same entitled to receive."

On the twelfth of December, 1872, the parties signed a further agreement, stating that Mickle on the part of the levee board, George B. Fleece on the part of the plaintiffs, and R. L. Cobb, designated by Fleece with the consent of Mickle, constitute the board of arbitrament referred to in the agreement of October 4, 1872; and establishing rules to govern that board in adjusting all matters brought before them, one of which rules was as follows:

"Inasmuch as by the terms of said agreement the first party can only rebut the testimony introduced by the second party, it is agreed that the said second party shall, before further proceeding with the measurement, notify the first party in writing what points they expect to prove and the character of the evidence proposed, so that the said first party may be ready with the rebutting evidence."

On the same day, the plaintiffs gave notice in writing to the levee board that they would introduce proof before the board of arbitration upon twelve different matters, including these three:

"(4) The clause in the contract touching shrinkage, its meaning, and the adjudication of that question by the chief engineer of your board prior to and about simultaneous with the signing of the original contract." “(9) The damage done to us by the repeated refinishing of work under orders of your engineers." "(11) The delay of a final estimate, of various payments, and the damage to us arising therefrom."

On the next day, Mickle wrote a letter to Fleece, beginning thus: "In arranging the preliminaries to our organization as a board of arbitrament on the question of difference between the levee board of this district and Messrs. Partee and Stansell, I am notified that claims will be made and testimony offered clearly in contravention of the terms of the agreement from which our authority is to emanate, and as such proceeding would render our decision unsatisfactory and void, I cannot proceed further in the matter unless it is distinctly understood that the following provisions of the contracts and agreements entered into by the said parties, and on which our authority is understood to be based, shall be strictly observed."

He proceeded to point out that the agreement of October 4, 1872, did not permit any evidence to be introduced except in relation to the measurement of levees; and also stated the substance of the following provisions in the specifications annexed to the original contract:

"Nothing will be paid for settling, but its cost will be included in the price. paid for the levee, as estimated up to true grade. If the levee be found deficient in height, slopes, or base, or not to have the full settling on top and slopes, the contractor must go over it immediately and correct all deficiencies, when the engineer in charge will run a test-level over it to see that all is right." "All damage or injury to the work, resulting from flood or other cause, shall

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be sustained by the contractor until finished and received by the chief engineer; and no work shall be received until fully and completely finished in accordance with the above specifications."

To this letter Fleece immediately replied, contending that the board of arbitrament was already organized, and declining to discuss in advance any point likely to come before it. A correspondence of six weeks ensued between Mickle and Fleece, in the course of which, after much dispute upon the question whether Cobb had been in due form accepted as one of the arbitrators, Fleece designated him anew in writing, Mickle declined to accept him, Fleece offered Mickle the choice of either of several other persons in Cobb's stead, and the correspondence ended in Mickle's insisting on the objections made in his letter of December 13, 1872, and in the plaintiffs' abandoning the arbitration.

The court below was of opinion that the receipt in full of the eighteenth of June had been wholly set aside by the agreement of the fourth of October, and that the arbitration under this agreement had failed by the fault of the defendant; and entered a decree for the plaintiffs according to the final estimate of Kirkpatrick. We cannot concur either in the reasons or in the result. In our view. the effect of the agreement of the fourth of October, 1872, was to recognize that there had been a settlement in full between the parties of the amount due from the levee board to the plaintiffs, which bound both parties as an accord and satisfaction; and to agree to open that settlement to this extent only: Three engineers, to be appointed as therein provided, should measure the work done by the plaintiffs. If their estimate should differ from the estimate of Mickle, according to which the settlement had been made, the difference should be paid by the board or refunded by the plaintiffs. The stipulation that the three engineers should "constitute a board of arbitrament for the adjustment of all questions of difference" was necessarily limited to questions of difference in relation to the subject to be referred to them. If such measurement by the arbitrators should not modify the estimate of work done, or if the arbitration should fail without fault of the levee board, the settlement stood.

The evidence, the substance of which is above recited, satisfies us that the arbitration did not fail by any fault on the part of the levee board, but by reason of the persistent attempts of the plaintiffs, against the steady opposition of the levee board, to introduce evidence before the board of arbitrament, not limited to the question of measurement, which was the only matter to be submitted to this board,

but touching other matters which had been concluded by the contracts executed and the settlement made between the parties.

The result is that the decree below must be reversed, and the case remanded with directions to enter a decree dismissing the bill.

(106 U. S. 536)

UNITED STATES v. Power and others

(January 8, 1883.)

DISBURSING OFFICER-WHEN CHARGEABLE WITH INTEREST.

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Where an officer of the government has money committed to his charge, with the duty of disbursing it as required, he cannot be charged with interest until it is shown that he has converted it to his own use or failed to pay when occasion required, or to transfer or pay to the government on some lawful order.

In Error to the Circuit Court of the United States for the District of Massachusetts.

Sol. Gen. Phillips, for plaintiff in error.

No brief filed or argument made for defendant in error.

MILLER, J. The United States recovered a judgment in the circuit court for the district of Massachusetts against Denvir, on his bond, given as surety for the faithful performance by David F. Power of all his duties as acting assistant paymaster in the navy of the United States. No service on Power or appearance for him and no defense by Denvir being made, judgment was rendered for the sum of money found to be in the hands of the paymaster, with interest from the service of the original writ in this suit, in March, 1875. The United States asserted a right to interest from the date of the last receipt of money by the paymaster, namely, August, 1865, and excepted because the court overruled this proposition. No evidence was given of any demand on the paymaster, or any refusal to pay or transfer the fund in his hands, or to comply with any lawful order on the subject.

Though the condition of the bond is not exactly the same as in the case of U. S. v. Curtis, 100 U. S. 119, the principle of that case must control this.

That principle is that where an officer of the government has money committed to his charge, with the duty of disbursing or paying it out as occasion may arise, he cannot be charged with interest

on such money until it is shown that he has failed to pay when such occasion required him to do so, or has failed to account when required by the government, or to pay over or transfer the money on some lawful order. The mere proof that the money was received by him raises no obligation to pay interest, in the absence of some evidence of conversion or some refusal to respond to a lawful requirement. The obvious reason for this is that the government places the money in the hands of this class of officers and all others who are disbursing officers that it may remain there until needed for use in the line of that officer's duty, and until that duty requires such payment, or a return of the money to the proper department of the government, he is in no default, and cannot be required to pay interest. The judgment of the circuit court is affirmed.

(106 U. S. 537)

UNITED STATES v. KNOWLES and another.

(January 8, 1883.)

OFFICIAL BOND-SUIT ON-INTEREST, WHEN CHARGEABLE.

In Error to the Circuit Court of the United States for the District of Massachusetts.

Sol. Gen. Phillips, for plaintiff in error.

No counsel for defendants in error.

MILLER, J. This case differs from the preceding case of United States v. Power only in the circumstance that it is a suit on the bond of a military storekeeper in the army, and the amount found due had reference to property as well as money. The same question as to interest was raised, and the court, on the ground that no demand was made until the service of the writ, only allowed interest from that date.

Though, in the case of personal property, and, indeed, of money so held, proof of a conversion might justify interest from the date of such conversion, there is no evidence in this case of such conversion, or of an earlier demand than that made by service of the writ, and the judgment must be affirmed.