Page:Federal Reporter, 1st Series, Volume 9.djvu/823

SOS PEDKEA.L BEPORTEB. �The contract, then, was complete. In substance, it was that if the defendant would pay $55,000, immediately, the goverument would release him from all known claims. It was not a contract by which, in consideration of his promise to pay, they released him, or even promised to release him ; or to forbear to sue him or his ex- ecutors. If he had retracted his consent on Monday, they would have prosecuted their suits for penalties as well as duties, They did not intend to release those suits and claims, which, if he had lived, would have been their best security, Still, it was a contract; and if Way had immediately tendered the money to the government, he might have pleaded the contract and tender in bar of the suit or suits ; and, on the other hand, if the government had chosen to tender to Way a release of all claims, I do not see why they might not have sued him on the contract. They made no such tender then, or since, and when Way died the occasion for a release was gone ; there was no longer a large unliquidated claim to be relieved by the pay- ment. In this state of things I decide that there was no contract binding the exeeutors to pay $55,000 to the government. �As to the second compromise, the objection is taken by the govern- ment that there was no report upon it by the district attorney, as required by the statute, (now Rev. St. § 3469.) But there was a full and elaborate report and recommendation by Mr. Hurd upon a similar offer; and it is upon this report that the solicitor founded his own. This is plain upon the face of the papers. The offer thus reported on was not only similar, but, in substance, identical. It was to submit to a judgment for $13,500, the estimated amount of duties; and the accepted offer was to submit to a judgment for the amount of the same duties, to be ascertained by an auditor. There had been, therefore, a substantial compliance with the statute. Whether the new compromise was one which, in law, would have superseded the old one, if that had been of binding force after Way's death, I have no occasion to decide. Judgment for the defendants. ��� �