Allen v. United States

Nott, J.,

concurring:

I acquiesce in a judgment pro forma against the claimants as the only means for rescuing the case from the dead-lock of a divided court, and of bringing the important questions which it involves to the final decision of the Supreme Court.

I assent to the findings of fact as facts which have properly and improperly appeared in the case, and I agree to the first and second conclusions of law as abstract legal principles; but I regard the second, third, and fourth findings insufficient to constitute a defence; the fifth as wholly irrelevant under the pleadings, and the first and second conclusions of law as inapplicable to the facts of this case. As to the third and final conclusion of law, I think it error.

Under the very comprehensive language of the act reconstituting this court, which confers upon it jurisdiction of off-set and counter-claim against claimants, it may be that the defendants might have sought affirmative relief which the court might be able to grant. But the defendants have asked no affirmative relief, and have contented themselves with pleading in bar to a suit at law what might be at most the subject of a cross-bill in equity.