Duncan v. United States - 32 U.S. 435 (1833)


U.S. Supreme Court

Duncan v. United States, 32 U.S. 7 Pet. 435 435 (1833)

Duncan v. United States

32 U.S. (7 Pet.) 435

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

Action on a bond executed by William Carson as paymaster and signed by A L. Duncan and John Carson as his sureties, conditioned that William Carson, paymaster for the United States, should perform the duties of that office within the District of Orleans. The breach alleged was that W. C. had received large sums of money in his official capacity in his lifetime which he had refused to pay into the Treasury of the United States.

The bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan as sureties for William Carson, but was not executed by Thomas Duncan. There were no witnesses to the bond, but it was acknowledged by all the parties to it before a notary public. The defendants, the heirs and representatives of A. L. Duncan, in answer to a petition to compel the payment of the bond, say that it was stipulated and understood when the bond was executed that one Thomas Duncan should sign it, which was never done, and the bond was never completed, and therefore A. L. Duncan was never bound by it. They also say that as the representatives of A. L. Duncan, they are not liable for the alleged defalcation of William Carson, because he acted as paymaster out of the limits of the District of Louisiana, and the deficiencies if any, occurred without the limits of the said district.

Before the jury was sworn, the defendants offered a statement to the court for the purpose of obtaining a special verdict on the facts according to the provisions of the act of the Legislature of Louisiana of 1818. The court would not suffer the same to be given to the jury for a special finding, because it "was contrary to the practice of the court to compel a jury to find a special verdict."

The judge charged the jury that the bond sued upon was not to be governed by the laws of Louisiana in force when the bond was signed at New Orleans, but that this and all similar bonds must be considered as having been executed at the seat of the government of the United States, and to he governed by the principles of the common law; that although the copy of the bond sued on, which was certified from the Treasury Department, exhibited a scrawl instead of a seal, yet they had a right to presume that the original bond had been executed according to law; and that in the absence of all proof as to the limits of the District of New Orleans, the jury was bound to presume that the defalcation occurred within the district, and if the paymaster acted beyond the limits of the district, it was incumbent on the defendants to prove the fact. Held that there was no error in these decisions of the District Court of Louisiana.

This is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed, and also the

Page 32 U. S. 436

manner in which its obligations should be enforced. It was delivered to the Treasury Department at Washington, and to the Treasury did the paymaster and his sureties become bound to pay any moneys in his hands. These powers exercised by the federal government cannot be questioned. It has the power of prescribing under its own laws what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases the local law cannot affect the contract, as it is made with the government, and in contemplation of law, at the place where its principal powers are exercised.

It is not essential that any court, in establishing or changing its practice, should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding for a series of years, and this forms the law of the court. In this case it appears that the Louisiana law, which regulated the practice of the District Court of Louisiana, has not only been repealed, but the record shows that in the year 1830, when the decision was given in this case, there was no such practice of the court as was adopted by the Act of Congress of 26 May, 1824. The court refused the statement of facts to go to the jury for a special finding because it said "such was contrary to the practice of the court."

By the court.

"On a question of practice, it would seem that the decision of the"

district court as to what the practice is should be conclusive. The practice of the court cannot be better known and established than by its own solemn adjudications on the subject.

On 22 November, 1829, the district attorney of the United States filed, on behalf of the United States, a petition stating that on 4 March, 1807, William Carson, Abner L. Duncan and John Carson made and executed their bond to the United States in the sum of $10,000, by which they bound themselves, and each of them, and either of their heirs, executors and administrators, that William Carson, paymaster of the United States, should well and truly perform and discharge according to law the duties of the office of paymaster of the United States within the District of New Orleans. The petition alleged a breach of this bond by William Carson, paymaster, in having received, in his lifetime, large sums of money in that capacity, which he refused to pay into the Treasury of the United States. And also that Abner L. Duncan had died, leaving property, and that by reason of the facts above stated, his heirs, to-wit, John N. Duncan,

Page 32 U. S. 437

Frances Duncan, wife of Frederic Conrad, Hannah Duncan, Elizah Duncan, and Abner Duncan, all children of the said Abner L. Duncan, these last three named being minors, and also Frances S. Duncan, wife of the said Abner L. Duncan, who had accepted the community of her deceased husband, had become liable to pay, and were indebted to the United States, jointly and severally, in the sum of $10,000. The petition proceeded to pray that John N. Duncan and Frances S. Duncan, and the aforesaid minors Hannah, Eliza and Abner Duncan, their tutors and curators, be cited to answer the petition, and that, after due proceedings had, they might have judgment against them, jointly and severally, for the sum of $10,000, with interest and costs. To this petition was annexed a copy of the bond, as follows:

"Know all men by these presents that we, William Carson, paymaster for the United States of America within the District of New Orleans, Abner L. Duncan, John Carson, and Thomas Duncan, Esquires, are held and firmly bound unto the said United States in the penal sum of ten thousand dollars, money of the United States, to be paid to the said United States of America, for which payment well and truly to be made, we bind ourselves, and each of us, by himself, our and either of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this fourth day of March, 1807. The condition of this obligation is such that if the above-bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform and discharge the duties of said office of paymaster for the United States of America, within the District of Orleans, then the above obligation to be null and void, otherwise to remain in full force and virtue."

"WILLIAM CARSON"

"A. L. DUNCAN"

"JOHN CARSON"

The bond was acknowledged by William Carson and Abner L. Duncan, before a notary public in New Orleans, on 4 March, 1807, and by John Carson, before a notary public

Page 32 U. S. 438

at Harrisburg, Pennsylvania, on 21 May, 1807. The copy of the bond was certified according to the provisions of the Act of Congress of 3 March, 1817, entitled "an act providing for the prompt settlement of accounts."

To the petition of the United States the heirs and representatives of Abner L. Duncan filed an answer on 14 December, 1829, in which all the allegations in the petition were denied except that Abner L. Duncan did sign the bond therein referred to, but they averred that said Duncan was not, in his lifetime, nor were the respondents, bound in law to pay the amount thereof or any part thereof. They further averred that by and in said bond it was stipulated and understood (when the same was signed by the said Abner L. Duncan, as surety for said Carson) that one Thomas Duncan should also sign the same as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was the said Abner L. Duncan ever bound thereby.

Afterwards, on 26 May, 1830, an amended answer was filed stating that the respondents were not liable for the alleged defalcation in the accounts of the said Carson because said Carson acted as paymaster out of the limits of the District of Louisiana, and the said deficiencies, if any existed, occurred without the limits of said district.

The cause came on for trial upon these pleadings on 29 May, 1830, and before the jury were sworn, the counsel for the defendants offered to the court a statement of the facts for the purpose of obtaining a special verdict on the facts under the tenth section of the act of the Legislature of the State of Louisiana of 1817, page 32. This being opposed by the district attorney, the court refused to admit the same or to suffer the same to be given to the jury for a special finding, "because such was contrary to the practice of this court and because a jury ought not to be compelled to find a special verdict." Whereupon the counsel for the defendants excepted to the opinion and decision of the court therein, before the jury were sworn.

On the trial of the cause, a transcript from the Treasury Department of the accounts of William Carson, as paymaster,

Page 32 U. S. 439

was given in evidence showing a balance due to the United States of $6,126.11, for which sum a verdict was given and a judgment thereon rendered in favor of the United States. On the trial, the defendants took the following bill of exceptions:

"Be it remembered that on the trial of this cause, the judge charged the jury that the bond sued on was not to be governed by the laws of Louisiana, or those in force in the Territory of Orleans, at the time said bond was signed by Abner L. Duncan, who signed it in New Orleans, in the then said territory; but that this and all similar bonds must be considered as having been executed at the seat of government of the United States, and to be governed by the principles of a common law, to-wit, the common law of England. The judge further charged the jury that although the copy of the bond sued on exhibited a scroll instead of a seal, yet they had a right to presume that the original bond had been executed according to law, to-wit, that it was sealed in the manner prescribed by the common law, that the scroll in the copy represented the place of the seal, as plainly as could be done without a facsimile, and that if the fact was otherwise, it was in the power of the defendants to have shown it. The judge also charged the jury that it was bound to presume, in the absence of all proof as to the limits of the District of Orleans, that the deficiency in the accounts of Carson (hereunto annexed), the principal obligor on said bond, occurred on account of moneys received and disbursed as paymaster of the District of Orleans, although it was proved that side Carson had acted as paymaster, and disbursed moneys, as such, at Fort Stoddart, and at the Town of Washington, both in the then Territory of Mississippi; and finally that if said Carson disbursed money in any other district than that Orleans, it was incumbent on the defendants to prove that fact. The judge further charged that the possession of the bond by the Treasury Department, was prima facie evidence of delivery. To all of which charges the counsel for the defendants then and there excepted before the jury retired to consider their verdict. "

Page 32 U. S. 440

The defendants prosecuted a writ of error to this Court, and the record presented the bill of exceptions to the ruling of the district court, as to the claim to have a special verdict, and the matters which the defendants' counsel offered for the jury to find as such, and also the bill of exceptions sealed by the court on the trial of the cause.

The case came on for argument, at the January term of this Court in 1832, and was held under advisement. It was in part reargued at this term.

Page 32 U. S. 445

MR. JUSTICE McLEAN delivered the opinion of the Court.

This writ of error is prosecuted to reverse a judgment of the district court, which exercises circuit court powers, in the State of Louisiana.

In the year 1829, an action was commenced by the United States against the plaintiffs in error on a bond given by William Carson, as paymaster, and signed by A. L. Duncan and John Carson, as his sureties. The bond bears date the 4th day of March, 1807, and contains a condition

"That if the above-bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform

Page 32 U. S. 446

and discharge the duties of said office of paymaster, &c., within the District of Orleans, then the obligation to be void."

The breach alleged in the petition was that William Carson, paymaster, &c.,

"has not well and truly, according to law, discharged and performed the duties of said office for the District of Orleans, but that, on the contrary, he did, in his lifetime, receive large sums of money, in his capacity aforesaid, which, although frequently requested, he refused to pay into the Treasury of the United States."

The defendants, in their answer, said that

"By and in said bond it was stipulated and understood, when the same was signed by Abner L. Duncan as surety for said Carson, that one Thomas Duncan should also sign the same, as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was said A. L. Duncan ever bound thereby."

They also aver that they are not liable for the alleged defalcation in the accounts of said Carson because he acted as paymaster out of the limits of the District of Louisiana, and the said deficiencies, if any exist, occurred without the limits of said district.

Before the jury was sworn, the defendants offered a statement to the court for the purpose of obtaining a special verdict on the facts in pursuance of the provisions of the tenth section of a statute of Louisiana, passed in 1817. But the court overruled the statement and would not suffer the same to be given to the jury for a special finding because it was contrary to the practice of the court to compel a jury to find a special verdict. To this decision, an exception was taken.

A transcript of the accounts of Carson, duly certified by the Treasury Department, was then given in evidence to the jury, and the judge charged the jury that the bond sued on was not to be governed by the laws of Louisiana or those in force in the Territory of Orleans at the time said bond was signed by A. L. Duncan, who signed it in New Orleans in the then said territory, but that this and all similar bonds must be considered as having been executed at the seat of government of the United States and to be governed by the principles of the common law. That although the copy of the bond sued on, exhibited a scroll instead of a seal, yet they had a right to

Page 32 U. S. 447

presume that the original bond had been executed according to law. That the jury was bound to presume, in the absence of all proof as to the limits of the District of Orleans, that the defalcation of Carson occurred in the District of Orleans, although it was proved that he disbursed moneys, as paymaster, at Fort Stoddart and at Washington, in the Territory of Mississippi, and that if the defendant Carson had acted as paymaster beyond the limits of the District of Orleans, it was incumbent on the defendant to prove the fact. And the judge also charged the jury that the possession of the bond by the Treasury Department was prima facie evidence of delivery, to which charge, exceptions were taken.

The jury rendered a verdict against the defendants for $6,126, with interest, &c. This judgment the plaintiffs in error pray may be reversed on the following grounds:

1. Because the surety, Abner L. Duncan, is not bound, as when he executed the bond, it was agreed that it should also be signed by Thomas Duncan.

2. Because William Carson was appointed paymaster for a certain district, and the judgment covers defalcations, which may have occurred out of such district.

3. The rejection by the court of the statement of facts, on which a special verdict was prayed.

4. Because the rejectment of this statement precluded the defendants from proving that the bond was delivered as an escrow.

As to the first error assigned, it appears on an inspection of the bond it was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan, as sureties for William Carson, but that Thomas Duncan never signed it. There are no witnesses to the bond, but on the day of its date it was acknowledged by William Carson and Abner L. Duncan before a notary public at New Orleans, and on 21 May following, John Carson acknowledged it before a notary public at Harrisburg, in Pennsylvania.

To sustain this ground, reference is made to a decision of the Supreme Court of Louisiana in the case of Wells v. Dill, reported in 1 Mart. (N.S) 592. In its decision the court said that

Page 32 U. S. 448

"The defendant is sued on the ground that he signed, as surety, an instrument purporting to be a bond signed by Charles Blanchard for his faithful performance of the duties of curator to the vacant estate of one Jared Risdon, deceased. In apposition to this action, the defendant relies principally on the want of the signature of another person to the instrument, whose name is mentioned in the body of it as co-surety. The bond is drawn in the name of Charles R. Blanchard, as principal and the defendant and Walter Turnbull as sureties. At the bottom, the name of Blanchard and Dill are affixed; that of Turnbull is wanting. We agree with the defendant that under these circumstances, his signature to the obligation does not bind him. The contract is incomplete until all the parties contemplated to join in its execution affix their names to it, and while in this state, cannot be enforced against any one of them. The law presumes that the party signing did so upon the condition that the other obligors named in the instrument should sign it, and their failure to comply with their agreement gives him a right to retract."

Pothier is cited by the court to sustain this principle.

There can be no doubt that under the civil law, the principle is correctly stated by the court. It must be observed, however, that the court said the want of Turnbull's signature was principally relied on to invalidate the bond, so that there seems to have been no circumstances going to refute the presumption against its validity, arising from its face, and that the omission of the signature was not the only ground of objection to it.

It is a principle of the common law too well settled to be controverted that where an instrument is delivered as an escrow, or where one surety has signed it on condition that it shall be signed by another before its delivery, no obligation is incurred until the condition shall happen. And if it appeared in the present case that Abner L. Duncan signed the bond, to be delivered on condition that Thomas Duncan should execute it, there can be no doubt the plea should have been sustained in the court below. But the delivery of the bond, as well as the signatures of the parties, is a question of fact for the jury, and this Court cannot determine the legal question arising on

Page 32 U. S. 449

such fact unless it be stated in a bill of exceptions. The acknowledgment of the bond by Abner L. Duncan, and afterwards by John Carson, unconditionally, and its delivery to the government, would seem to rebut the inference drawn by the plaintiffs against its validity, from the simple fact of its not having been signed by Thomas Duncan. There is therefore nothing upon the face of the record which would go to destroy the validity of this bond.

A question was raised and elaborately argued by the counsel for the plaintiff whether this bond, having been executed at New Orleans, was not governed, not only as to the manner of its execution but also as to the extent of the obligations incurred under it, by the principles of the civil law. In the case of Cox v. United States, decided at the last term, this question was settled. This is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed and also the manner in which its obligations should be enforced. It was delivered to the Treasury Department at Washington, and to the Treasury did the paymaster and sureties become bound to pay any moneys in his hands. These powers, exercised by the federal government, cannot be questioned. It has the power of prescribing, under its own laws, what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases the local law cannot affect the contract, as it is made with the government, and in contemplation of law, at the place where its principal powers are exercised.

As there was no evidence before the jury that any part of the defalcation of the paymaster occurred without the limits of the district in which, as appears by the bond, he was to act, the court below might well instruct the jury that in the absence of such proof, it was bound to presume that the deficiency took place within the district.

The rejection of the special verdict by the court is the ground which seems most to be relied on for a reversal of this judgment. In 1817 the Legislature of Louisiana enacted that

"In every case to be tried by a jury, if one of the parties demands that

Page 32 U. S. 450

the facts set forth in the petition and answer should be submitted to the said jury to have a special verdict thereupon, both parties shall proceed, before the jury are sworn to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the counsel and signed by the judge, and the jury shall be sworn to decide the question of fact or facts so alleged and denied."

On 26 May, 1824, Congress passed an act entitled "an act to regulate the practice in the courts of the United States for the District of Louisiana," in which it is provided that

"The mode of proceeding in civil causes in the courts of the United States that now are or hereafter may be established in the State of Louisiana shall be comformable to the laws directing the mode of practice in the district courts of said state, provided that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts and make by rule such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States and to avoid any discrepancy, if any such exist, between such state laws and the laws of the United States."

This section was a virtual repeal, within the State of Louisiana, of all previous acts of Congress which regulated the practice of the courts of the United States and which came within its purview. It adopted the practice of the state courts of Louisiana, subject to such alterations as the district judge of the United States might deem necessary, to conform to the organization of the district court and avoid any discrepancy with the laws of the Union.

By a code of the Louisiana Legislature, passed in 1829 called the "Code of Procedure," the act of 1817 was repealed. This repealing act was not before the court until the present session, and a question is made under it whether it does not, by virtue of the Act of Congress of 1824, change the practice of the district court. It is insisted for the plaintiffs that it could not have been the intention of Congress, by the act of 1824, to subject the practice of the District Court in Louisiana to any changes which the legislature of that state might adopt in reference to the practice of the state courts, and the

Page 32 U. S. 451

construction which has been given to the act of 1792, which regulates process in the courts of the United States, is relied on as conclusive on the point. This act, by reenacting the act of 1789, adopted the "modes of process" for the district and circuit courts, which were in use, at the time of its passage, in the supreme courts of the respective states, but did not require, as this Court has decided, a conformity to the changes which might be made in the process of those courts. Nor did the act apply to those states which were subsequently admitted into the Union. But this defect was removed by the Act of 10 May, 1828, which placed all the courts of the United States on the same footing in this respect except such as are held in the State of Louisiana.

It does not appear that the District Court of Louisiana, by the adoption of any written rule, has altered the practice which this Court in the case of Parsons v. Armor and Parsons v. Bedford, reported in 3 Peters, considered as having been adopted by the act of 1824. But, if the questions raised in these cases occurred after the act of 1817 was repealed by the code of procedure in 1829, the fact was not known to the court. As the act of 1824 adopted the practice of the state courts, before this Court could sanction a disregard of such practice, it must appear that by an exercise of the power of the district court or by some other means, the practice had been altered. It is not essential that any court, in establishing or changing its practice should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding for a series of years, and this forms the law of the court. In the case under consideration, it appears that the Louisiana law, which regulated the practice of the District Court of Louisiana, has not only been repealed, but the record shows that in the year 1830, when the decision objected to was made, there was no such practice of the court as was adopted by the act of 1824. The court refused to suffer the statement of facts to go to the jury for a special finding, because they said "such was contrary to the practice of the court." On a question of practice, under the circumstances of this case, it would seem that the decision of the district court, as

Page 32 U. S. 452

above made, should be conclusive. How can the practice of the court be better known or established than by its own solemn adjudication on the subject?

In regard to the last error assigned, it is not perceived how the refusal of the special verdict precluded the defendants from proving that the bond was delivered as an escrow. Such evidence was admissible under the plea or answer of the defendants, but it does not appear that any such was offered and rejected by the court. The judgment of the district court must be

Affirmed with costs.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana and was argued by counsel, on consideration whereof it is ordered and adjudged by this Court that the judgment of the said district court in this cause be and the same is hereby affirmed with costs and damages at the rate of six percentum per annum.



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