delivered the opinion of the Court.
Our reflections on this ease, have led us to the conclusion tha the Court below were right, in refusing to give the directions prayed in the first and second prayers of the defendant, who is the appellant here. (The J udgc here stated the facts of the case.) This being the testimony in behalf of the plaintiff, it is not easy to conceive how the Court could have given to the jury the directions asked in the first prayer — “ that the plaintiff had adduced no evidence of any undertaking between him and the defendant, touching services for indemnification for the ship Temperance, by which the said Kalkman is liable to the said Causten, and that the plaintiff is not therefore entitled to recover.” The *364evidence of the defendant’s undertaking, looked them full in the face, and his liability under it seems without doubt. The time of the contract between the parties, is not ascertained, and was a proper subject for the jury, who might as fairly infer, that it was entered into a little anterior to the letter of the 7th of February, 1821, as that it bore date before the insolvency in 1817. And if the meaning of the prayer is, that the defendant’s undertaking is barred by time, as was suggested by the counsel, the answer is, that the services were not performed until some time in the year 1822, and in March, 1823, the order on the Secretary acknowledges the justice of the plaintiff’s demand, and that it was then a subsisting debt.
The Court’s rejection of the instructions required in the second prayer, is also entitled to our decided approbation. If, under the contract, the plaintiff’s compensation for services rendered was to be paid out of the sum allowed by the government, it does not necessarily follow that it cannot be recovered of the defendant. The personal remedy is unquestionable, if the plaintiff has been deprived of his compensation out of the funds, by the defendant’s means, the fund here has not, in truth, come to his hand, .nor is it now at the disposal of himself, or his trustee, but it has been snatched from the plaintiff, and wholly applied by the United States, to the payment of a debt due to them by the defendant, the justice of which he does not pretend to deny. The moment of appropriation by the United States is not known ; neither is it worth inquiring into. The plaintiff had no lien upon the fund, arising out of the order, even if it had been presented before the money was applied to the payment of the custom house dues. It is not a bill of exchange, nor is the transaction within the pale of the law merchant, and there was no greater obligation on the United States, to pay in parcels, the sum awarded to Kalhnan, than rests upon every private debtor, who has to pay a sum of money ,to a single individual creditor. If the United States had answered the order, it would have justified the pay*365ment to Causten, and this is the only valuable legal purpose it could have been made to answer. But it has been in argument contended, that the United States had no authority to apply this fund to the payment of the custom house demand, inasmuch as it had been previously disposed of by the insolvent laws of Maryland, and belonged to the trustee of Kalkman. If this be so, it affords a substantial reason why Kalkman’s order should not have been paid to Causlen by the Secretary of the Treasury. There is, however, nothing in the objection. Had this money been paid to the trustee, the United States would have been entitled to it, to satisfy the custom house bonds, the act of Congress of 1799, ch. 128, giving them a priority of payment, in the disposition of insolvents’ estates. 1 Peters, 438, 439, and the trustee would have had to perform the useless ceremony of receiving with one hand to pay with the other. Under whatever aspect this caso can ho considered, we think Baltimore County Court were correct, in refusing to instruct the jury, as prayed for by the defendant, and their judgment is affirmed.
JUDGMENT AFFIRMED.