Levi Woodbury

“ But the custom and usage which has been invoked by the defendant in his favor, must also operate when it is established against him. The usage, to be binding, must be uniform, and be applicable to all officers of the same grade, under similar circumstances. It is not sufficient that one, two, or half a dozen officers have been allowed an extra compensation for such services, unless the rule was a general one, so that each officer performing the service might be supposed to rely on the known practice of the government to allow extra compensation at the time the service is performed. ”

“ From the evidence, it appears that the articles furnished by the purser are of a finer material than those provided by the government, and have generally been considered in the service as a holiday or shore dress for the seamen. They are not required to purchase them, but do so at their own pleasure. A number of witnesses have been examined, who proved it to have been the custom and usage to charge upon these articles an advance of twenty-five per cent., and that they were considered of secondary necessity. It is true there can be no usage recognized by the courts which is contrary to law. ”

“ It is certain, that no action could technically be sustained against the United States for any wrong done here by Commodore Claxton. And, waiving their sovereignty to bar a suit, it is quite manifest that no claim exists as a matter of course against the government for a wrong done by one officer against another officer, or by oen officer against an individual, when the liability of the officer himself for public acts is often questionable ”

“ They become, in equity, bound themselves to reimburse him for the actual loss of profit accruing from their act. And such was the judge's charge. He instructed the jury to allow 'only the actual loss sustained by the defendant, and not any prospective or anticipated profits.' United States v. Hawkins, 10 Pet., 125, shows the manner in which the purser's accounts are adjusted at the treasury. ”

“ In May, 1839, the frigate Constitution sailed for the Pacific. She was commanded by Captain Turner, and the defendant the the purser. On board of her was Commodore Claxton, the commander of the squadron on the Pacific station. Early in the year 1840, Commodore Claxton issued an order, that, upon clothing taken from the private stores of the purser, there should not be charged a greater advance than ten per cent. ”

“ That the regulations as to pursers' commissions on articles furnished to the crew in the Blue Book are questions of law, and the true construction of them is, that pursers are entitled to dispose of slops, and articles of wearing apparel, and of materials of which it is made, at a commission or profit of ten per cent. ”

“ On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court affirming the judgment of the District Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter a disaffirmance of the judgment of the District Court, and to remand this cause to the said District Court, with directions to that court to award a venire facias de novo, and for further proceedings to be had therein in conformity to the opinion of this court. ”

“ An allowance of commission of 2 1/2 per cent. upon payments made by pursers is of ancient date.
'§ 2. Pursers are allowed a commission of 5 per cent. on the amount of sales of dead men's clothes. They are also allowed 5 per cent. upon clothing distributed to the crew. January 29, 1803.
'26 per cent. upon articles of secondary necessity, embracing all articles not denominated luxuries, upon which 5 per cent. is not charged. ”