McGovern v. United States

BAKER, Circuit Judge. Plaintiff in error, McGovern, deposited Eiberty Bonds with the clerk of this court in lieu of personal sureties. His executrix, showing that plaintiff in error has departed this life, moves that the bonds be returned to her free from the clerk’s charge of 1 per cent, on the amount thereof. Under rule 23 of this court (150 Fed. cxxxix, 79 C. C. A. cxxxix) the fees of the clerk for receiving, keeping, and paying money in pursuance of any statute or order of court shall be 1 per cent, on the amount so received, kept, and paid. This rule is in conformity to section 828, Rev. St. U. S. (Comp. St. § 1383), and in pursuance of the Act of February 19, 1897, c. 263 (Comp. St. § 1376). [263] Section 1320, Revenue Act of 1919 (40 Statutes at Large, p. 1148 [Comp. St. Ann. Supp. 1919, § 3301a]), is as follows: “Sec. 1320. That wherever by the laws of the United States or regulations ma.de pursuant thereto, any person is required to furnish any recognizance, stipulation, bond, guaranty, or undertaking, hereinafter called ‘penal bond,’ with surety or sureties, such person may, in lieu of such surety or sureties, deposit as security with the official having authority to approve such penal bond, United States Liberty Bonds or other bonds of the United States in a sum equal at their par value to the amount of such penal bond required to be furnished, together with an agreement authorizing such official to collect or sell such bonds so deposited in case of any default in the performance of any of the conditions or stipulations of sucli penal bond. The acceptance of such United States bonds in lieu of surety or sureties required by law shall have the same force and effect as individual or corporate sureties, or certified checks, hank drafts, post office money orders, or cash, for the penalty or amount of such penal bond." It is to be observed that rule 23 does not limit the fee to the handling of “cash,” meaning thereby the coinage of the government and the issues of notes which the government by law ranks with its coins. “Money” is a broader and more generic term and may include not only legal tender, coin or currency, but also- any other circulating medium or instruments or tokens 'in general use in the commercial world as representatives of value. In Gillen v. Kimball, 34 Ohio St. 352, it was held that a bequest of all of the testator’s money on deposit included a deposit of United States bonds. In section 1320 of the Revenue Act of 1919, United States bonds arc put in the same category as certified-checks, bank drafts, post office money orders and cash. We know from common knowledge that certified checks, bank drafts and post office money orders circulate in the business world as representatives of value and in satisfaction oE obligations at least as freely as do legal tender coins and notes. We also take judicial notice of the fact that United States bonds are quite frequently used in a similar way. Under the order of this court by which the plaintiff in error was left at large it was immaterial whether he-deposited “cash” or any of the enumerated representatives of value which are used in the commercial world as “money,” and the responsibility and labor of the clerk are quite as great in keeping and handling government bonds as they would be in the case of “cash.” The motion of the executrix is denied.