Oliver Wendell Holmes, Jr.

“ The Government cannot be made to pay or to take subject to the deduction, because Leary, even though a bona fide purchaser, had no contract for it, and because to charge the fund apart from contract is merely a roundabout way of saying that the owner of the fund must pay charges of a kind that the United States never pays ”

“ But it is thought that indemnity includes defences of the indemnifying fund against unexpected attacks, that if the trustee fails to make it the cestui que trust may do so, and that in either event the fund should be charged. It does not matter that the United States is the opposing party, as its rights in the fund are inferior to those that Leary now has successfully affirmed. ”

“ But the obligation to pay the judgment was absolute, not confinced to a payment from these funds, and the claim for the cost of resisting it has on foundation. We also are of opinion that the deduction of poundage by the clerk was proper as in other cases of money kept and paid out by him. But it is said that this item and the expense of defending the trust should be borne by the residue of the funds in the clerk's hands after deducting the amount paid in respect of the judgment. ”