United States v. Giles
13 U.S. 212 (1815)

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U.S. Supreme Court

United States v. Giles, 13 U.S. 9 Cranch 212 212 (1815)

United States v. Giles

13 U.S. (9 Cranch) 212

Syllabus

If a marshal, before the date of his official bond, receive, upon an execution, money due to the United States with orders from the Comptroller to pay it into the Bank of the United States, which he neglects to do, the sureties in his official bond, executed afterwards, are not liable therefor upon the bond, although the money remain in the marshal's hands after the execution of the bond.

Quaere whether the sureties in a marshal's bond conditioned for the faithful execution of his duty "during his continuance in the said office" are liable for money received by him after his removal from office upon an execution which remained in his hands at the time of such removal.

The Comptroller of the Treasury has a right to direct the marshal to whom he shall pay money received upon executions, and a payment according to such directions is good, and it seems he may avail himself of it upon the trial without having submitted it as a claim to the accounting officers of the Treasury.

No debtor of the United States can, at the trial, set off a claim for a debt due to him by the United States unless such claim shall have been submitted to the accounting officers of the Treasury and by them rejected, except in cases provided for by the statute.

This was a case certified from the Circuit Court for the District of New York, in which the opinions of the

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judges of that court were opposed upon ten questions of law arising out of a special verdict.

It was an action of debt brought by the United States against Giles, late Marshal of the District of New York, and his sureties upon his official bond, dated 9 January, 1801, the condition of which was as follows:

"Whereas the above bound Aquila Giles hath been appointed the Marshal in and for the New York District in pursuance of the act entitled 'An act to establish the judicial courts of the United States,' now therefore, the condition of the preceding obligation is such, that if the said Aquila Giles shall, by himself and by his deputies, faithfully execute all lawful precepts directed to the marshal of the said district under the authority of the United States, and true returns make, and in all things well and truly and without malice or partiality, perform the duties of the office of marshal, in and for the said District of New York, during his continuance in the said office, and take only his lawful fees, then the preceding obligation to be void, or else to remain in full force and virtue."

The defendants pleaded performance. The replication set forth six breaches of the condition of the bond.

1. That the United States having, in May, 1799, recovered judgment in the district court against one John Lamb for the sum of $127,952.99 debt, and $20 damages, a writ of fieri facias, was thereupon issued and delivered to the defendant, Giles, then being marshal, upon which he returned in August, 1799, that he had taken goods and chattels to the value of $50, which remained unsold for want of buyers, whereupon a writ of venditioni exponas and fieri facias, was issued and delivered to the said defendant, Giles, on 9 January, 1800, by virtue whereof he sold the said goods and chattels for $50, which sum he received, and also, by virtue of the said writ, sold lands of Lamb to the amount of $60,000, which sum he received and continued to hold until 1 February, 1801, when he converted the same to his own use, contrary to the tenor and effect of the condition of his said bond.

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2. That by virtue of the said writ, the defendant, Giles, on 17 September, 1800, sold other lands of Lamb, for $60,000, which he received on 20 January, 1801, and on that day converted the same to his own use, contrary to the tenor and effect of the condition of the bond.

3. That on 17 December, 1800, the Comptroller of the Treasury of the United States directed the defendant Giles to pay into the Office of Discount and Deposit of the Bank of the United States, at New York, to the credit of the account of the Treasurer of the United States, all such sums of money as should be made from the property of Lamb, by virtue of the aforesaid writ. That the defendant, Giles, afterwards, on 23 December, 1800, by virtue of that writ sold other lands of Lamb, to the amount of $60,000, which he received on 15 January, 1801, but has not paid the same, nor any part thereof, into the said Office of Discount and Deposit in the manner directed, contrary to the tenor and effect of the condition of his said bond.

4. That on 1 February, 1801, the defendant, Giles, being marshal as aforesaid, had in his hands as marshal, 14 bonds, the property of the United States (particularly described), and on that day converted the same, to his own use, contrary to the tenor and effect of the condition of his bond aforesaid.

5. That the defendant, Giles, having, in September, 1800, made the sum of $309.87, by virtue of a fieri facias, in behalf of the United States, against one Richard Capes, and having received the same, converted it to his own use on 1 February, 1801, contrary to the tenor and effect of the condition of his bond.

6. That the defendant, Giles, having so received all the several sums of money before mentioned, retained the same in his hands until 27 March, 1801, when he was duly removed and dismissed from his office of marshal, and ceased to be marshal of the New York District, and has retained the said several sums of money in his hands ever since. That on 2 June, 1804, he was duly notified according to law, by the Comptroller

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of the Treasury of the United States, to render to the auditor of the Treasury of the United States on or before 10 October, then next, all his accounts and vouchers for the expenditure of all monies received by him as marshal of the New York District, but he has never rendered the same, contrary to the tenor and effect of the condition of his bond aforesaid.

The defendants rejoined,

1. To the first breach, that the defendant, Giles, received the sum of $50, and sold the lands of Lamb for $30,000 and no more. That by the orders of the Comptroller of the Treasury of the United States, he received on 10 December, 1800, from the purchasers $11,000, and no more, in cash, in part of the said sum of $30,000, and took from them, by the like orders of the said Comptroller, their respective bonds and mortgages, 30 in number, for $19,000 being the residue of the said sum of $30,000. That on that day the United States was justly indebted to the said Giles in the sum of $20,000, for money paid by him at their request for their use, and for fees justly due by them to him as marshal, and for services performed by him for them at their request, when he retained in his hands the said sums of $50, and $11,000, as it was lawful for him to do, in part payment and satisfaction of the sum of $20,000 so due to him from the United States, and then and there delivered to the United States, the said several bonds and mortgages in full payment and satisfaction of the said residue of the said sum of $30,000. Without that, that he converted to his own use the said sums of $50 and $60,000, in the replication, in assigning the first breach mentioned, or any part thereof in manner and form, &c., any otherwise than by retaining the said sums of $50 and $11,000 as aforesaid.

2. To the second breach, they say that on 17 December, 1800, the defendant Giles, by virtue of the said writ, sold other lands of the said Lamb for the sum of $29,383.30, and no more, and that by order of the Comptroller he received from the purchasers only the sum of $10,000, and took their bonds and mortgages, 30 in number, for the payment

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of the balance, being $19,383.30. That the United States was on that day justly indebted to him in the sum of $20,000 for monies expended, &c., and for fees, and services, &c., wherefore he retained in his hands $8,950, part of the $10,000 in part payment and satisfaction of the said sum of $20,000, and paid to the United States the sum of $1,050, the residue of the said sum of $10,000, and delivered to the United States the 30 bonds and mortgages aforesaid in full payment and satisfaction of the aforesaid sum of $29,383.30; without that, that the said Giles converted to his own use, &c., otherwise than by retaining the said sum of $8,950 as aforesaid, &c.

3. To the third breach, they say that the said Giles did not receive $39,000, parcel of the said $60,000, but that he received in all the sum of $21,000 only from the buyers of the lands of the said John Lamb, and that the United States was on the said 15 January, 1801, justly indebted to the said Giles in the sum of $22,000, wherefore he did not pay the said sum of $21,000 or any part thereof into the Office of Discount and Deposit of the Bank of the United States, &c., but then and there retained the same in his own hands, as it was lawful for him to do, &c.

4. To the fourth breach they say that the said Giles, on 1 February, 1801, delivered the said bonds to the attorney for the United States -- without that, that he converted them to his own use, &c.

5. To the fifth breach, they say that on 8 January, 1801, the United States was justly indebted to Giles, in the sum of $22,000, wherefore he retained the said sum of $309.87, in part payment and satisfaction of the said sum of $22,000; without that, that he otherwise converted the same to his own use, &c.

6. To the sixth breach, they aver that Giles did render his accounts to the auditor on 10 October, 1804, as he was required to do.

To these rejoinders there were general surrejoinders

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and issues except as to the rejoinder to the third breach, upon which the plaintiffs took issue as to $39,000 and demurred as to the retainer of the $21,000, upon which demurrer the court gave judgment for the United States.

The jury found a special verdict which stated in substance, as follows:

1. As to the first breach, it finds that the defendant Giles was authorized by the officers of the Treasury Department of the United States, in executing the aforesaid writ of fieri facias, to sell the lands of the said John Lamb on the following terms, viz., one-fourth of the purchase money to be paid in cash, one-fourth with interest in 2 years, one-fourth with interest in 3 years, and the residue with interest in 4 years from the day of sale, to be secured by bonds and mortgages, and was directed by the Comptroller of the Treasury on 17 December, 1800, to pay over all monies he might receive therefor into the Office of Discount and Deposit of the Bank of the United States in the City of New York to the credit and account of the Treasurer of the United States. That the sales were commenced on 26 November and continued from time to time to 23 December, 1800. That Giles received from the purchasers before 9 January, 1801 (the date of the bond), $3,713.98, and no more, which sum, together with the sum of $50, which he had before received for the sales of the goods and chattels of the said John Lamb, be never had, nor any part thereof, before the said district court, to render to the United States, and never paid the same nor any part thereof into the said Office of Discount and Deposit, and that he has never been required by any rule or order of the said district court to bring the said monies into the court nor to pay them over in any manner whatever. That between August, 1800, and May, 1801, he arrested one Elias Hicks by virtue of a writ of ca. sa. in favor of the United States for $80,000, and by an endorsement thereon was directed to levy, by virtue thereof, $33,156.38, besides marshal's fees and poundage. That he kept the said Hicks in custody, in execution, until he was discharged by order of the Secretary of the Treasury of the United States pursuant to the act of

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Congress, entitled "An act providing for the relief of persons imprisoned for debts due to the United States." That the poundage fees for the service of that writ, if any such fees were due to the defendant Giles thereon have not been paid to him, and that they amounted to the sum of $419.57.

That the United States also became indebted to the defendant Giles in the further sum of $8,133.96 for his own fees and services in taking the second census or enumeration of the inhabitants of the United States in the said district, and for monies paid by him as marshal as aforesaid to his assistants in taking the said census, pursuant to the act of Congress in such case provided, which several sums, so due from the United States to the said Giles, amount to the sum of $8,553.53, and that he has retained the said sums of $50 and $3,713.98 from the times when they were received by him, and still retains them, claiming to hold and retain the same towards the payment and satisfaction of an equal sum due to him from the United States as aforesaid. But whether upon the whole matter aforesaid the said Giles did in law convert the said several sums of $50 and $3,713.98 to his own use, contrary to the tenor and effect of the condition of his said bond, the jurors aforesaid are ignorant, &c., and if the said Giles did so convert, &c., it assesses the damages at $3,763.98, and if, &c.

2. As to the second breach they find that the said Giles, having received such instructions as aforesaid from the Comptroller of the Treasury, and having sold the lands as aforesaid, afterwards, and after 9 January, 1801 (the date of the bond), and at different times before the commencement of this suit, received of certain other purchasers of the said lands several other sums of money, viz., before 27 March, 1801, (when he was removed from office) the sum of $1,683.52, and after that day the sum of $17,191.58, which two sums amount to $18,875.10, which was all the money he received from the said purchasers after 9 January, 1801, and that the poundage, and charges due to and paid by the said Giles upon the execution and the said sales, and

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legally chargeable against the proceeds of the said sales amounted to the sum of $1,332.85, which being deducted from the said sum of $18,875.10, left the net sum of $17,542.25 in the hands of the said Giles of the money so received by him after 9 January, 1801. That on 13 April, 1803, he paid part of the same, viz., $6,238.35, to Edward Livingston, who was then the United States attorney for the New York District, which payment was so made with the assent and approbation of the Comptroller of the Treasury of the United States, and agreeably to the usage and practice in that district; that the said Giles never had the said sum of $6,238.35 nor any part thereof before the district court to render to the United States and has never paid the same to the United States in any other manner than by the said payment to the said Edward Livingston (if such payment was a payment to the United States) and never paid the same, nor any part thereof into the Office of Discount and Deposit, &c.

That as to another part of the said sum of $17,542.25, to-wit, as to the sum of $4,479.68, the said Giles never had the same, nor any part thereof, before the district court to render to the United States, nor paid the same into the said Office of Deposit, &c., but has ever since held and retained the same, claiming to hold and retain the same towards payment and satisfaction of an equal sum so due to him by the United States as aforesaid.

That as to the residue of the said sum of $17,542.25, to-wit, as to the sum of $6,824.25, the said Giles never had the same nor any part thereof before the district court to render to the United States, nor paid the same to the United States nor into the Office of Discount and Deposit, &c., but still retains the same; but whether, in law, he converted the said three sums, viz., the $6,238.35 -- $4,479.68 -- and $6,824.25, or either of them to his own use contrary to the tenor and effect of the condition of his said bond, they are ignorant, &c. If in law he so converted the whole to his own use, then it so finds and assesses

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damages at $20,613.12. If he did not so convert the first of the said three sums, but did so convert the other two, then it so finds and assesses damages at $14,374.77. If he did not so convert the first and second of the said three sums, but did so convert the third, then it so finds and assesses damages at $9,895.09. If he did not so convert the said third sum, but converted the two first sums, then it so finds and assesses damages at $10,718.03. If he did not so convert the said second sum, but converted the first and third sums, then it so finds and assesses damages at $16,133.44. If he did not so convert the two last of the said three sums, but converted the first, it so finds and assesses damages at $6,238.35. If he did not so convert the first and third of the said three sums, but converted the second, then it so finds, and assesses damages at $4,479.68. And if he did not so convert either of the said three sums to his own use, then it so finds.

3. As to the third breach, the jurors find that the defendant, Giles, did not receive the sum of $39,000, and as to the judgment upon the demurrer respecting the retainer of the sum of $21,000, it assesses damages at $21,000.06.

4. As to the 4th breach, it finds that the defendant Giles kept possession of the said fourteen bonds, from 1 February, 1801, until 3 January, 1803, when he delivered them with the assent and approbation of the Comptroller of the Treasury of the United States to Edward Livingston, then being the United States Attorney for the District of New York. That on 12 January, the Comptroller of the Treasury of the United States directed the said Giles to deliver the said fourteen bonds to his successor in office, John Swartwout, marshal of the said district, which the said Giles did not do.

But whether upon the whole matter aforesaid he did, in law, convert the same bonds to his own use, contrary to the tenor and effect of the condition of his said bond, it is ignorant, &c., and if, &c., then it assesses damages at $5,255.73.

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5. As to the fifth breach, it finds that the defendant, Giles, having levied and received the said sum of $309.87, never had the same before the district court to render to the United States, nor paid the same to the United States, but retains the same claiming to hold it in payment and satisfaction of so much due to him by the United States as aforesaid, but whether in law he converted the same to his own use, contrary to the tenor and effect of the condition of his said bond they are ignorant -- and if, &c., then it assesses damages at $309.87.

6. As to the sixth breach, it finds that the defendant Giles did not render to the auditor of the Treasury of the United States all his accounts and vouchers, &c., in manner and form as the defendants in their rejoinder have averred, and assesses damages at six cents.

This cause came up to this Court in the year 1812, with a certificate from the court below that after argument upon the special verdict thereunto annexed,

"it appeared that the opinions of the judges were opposed upon all the points submitted by and in the said special verdict, and thereupon at the request of the attorney of the United States for the said district, the judges of the said court have directed this disagreement of opinion to be certified,"

&c.

But this Court, upon inspecting the record, was of opinion that the points on which the opinions of the judges of the circuit court were opposed, were too imperfectly stated to enable this Court to form an opinion thereon.

Whereupon the cause was remanded to the circuit court, and came back with a certificate that the opinions of the judges of that court were opposed upon the ten following questions arising on the said special verdict, viz.,

1. Whether judgment ought to be given for the plaintiffs

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or for the defendants as to the sum of $3,763.98, being the damages assessed upon the first breach.

2. Whether, &c., as to the sum of $20,613.12, being the first sum assessed as conditional damages upon the second breach.

3. Whether, &c., as to the sum of $14,374.77, being the second sum assessed as conditional damages on the second breach.

4. Whether, &c., as to the sum of $9,895.09, being the third sum assessed as conditional damages on the second breach.

5. Whether, &c., as to the sum of $10,718.03, being the fourth sum assessed as conditional damages on the second breach.

6. Whether, &c., as to the sum of $16,133.14, being the fifth sum assessed as conditional damages on the second breach.

7. Whether, &c., as to the sum of $6,238.35, being the sixth sum assessed as conditional damages on the second breach.

8. Whether, &c., as to the sum of $4,479.68, being the seventh sum assessed as conditional damages on the second breach.

9. Whether, &c., as to the sum of $5,255.73, being the damages assessed upon the fourth breach, and

10. Whether, &c., as to the sum of $309.87, being the damages assessed upon the fifth breach.

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