United States v. Gaussen
86 U.S. 198 (1873)

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U.S. Supreme Court

United States v. Gaussen, 86 U.S. 19 Wall. 198 198 (1873)

United States v. Gaussen

86 U.S. (19 Wall.) 198

ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF LOUISIANA

Syllabus

1. Under the Act of March 3, 1797, enacting that in suits against delinquent revenue officers, "a transcript from the books and proceedings of the Treasury shall be evidence," it is not necessary that every account with any individual and all of every account, should be transcribed. An extract may be given it -- evidence if not garbled or mutilated -- that is to say, an extract wherein credits are not suppressed, and which does not confine itself to results, or balances without details, but which is complete in itself -- perfect for what it purports to represent -- and which gives both sides of the account as it stands upon the books of the Treasury.

2. The court, however, states that "it is not authorized to regulate the manner in which the departments shall keep their books, or to prescribe the minuteness of detail," and that the statements and details of daily business made by a collector are necessarily condensed when carried to a ledger account, and the results of many items stated in a briefer form than that in which they stood on the original entries. And it confines itself to saying that certain particular transcripts, all much alike, offered in the case, and one of which is given by the reporter at large as an illustration of the whole, were sufficiently minute.

3. The said Act of March 3, 1797, proceeds upon the theory that the officers of the Government shall make up the account of every revenue officer, that it shall adjust the same on its books, and that the account thus stated and adjusted shall stand as and for the sum for which such officer shall be liable to it. The statement is prima facie evidence only.

A transcript of the accounts rendered by a collector himself (when not partial or fragmentary), is evidence against the surety on his official bond.

An Act of March 3, 1797, [Footnote 1] enacts:

"SECTION 1. That when any revenue officer . . . shall neglect or refuse to pay into the Treasury the sum or balance reported to be due to the United States upon the adjustment of his accounts,

Page 86 U. S. 199

it shall be the duty of the comptroller to institute suit for the recovery of the same, adding to the sum stated to be due, on such account, the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained."

"SECTION 2. That in every case of delinquency, where a suit has been or shall be instituted, a transcript from the books and proceedings of the Treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly."

"SECTION 4. That in suits between the United States and individuals, no claim for a credit shall be admitted upon trial but such as shall appear to have been presented to the accounting officers of the Treasury for their examination, and by them disallowed."

This act being in force, the United States sued Gaussen, executor of Elgee, in the court below on a bond given in 1845 by Thomas Barrett, as collector of the customers at the port of New Orleans, in which bond Elgee was a surety. The declaration filed by the government referred to a transcript, which was annexed to and made part of it, from the books of the Treasury, containing eight certain quarterly reports, numbered 5688 &c., of the first auditor, upon the quarterly accounts of Barrett, as admitted and certified by the comptroller and commissioner of customs, and "statements of differences" thereon; and also copies of quarterly accounts current rendered by Barrett, the collector, himself. Each class of things covered the whole term that Barrett was in office.

The report of the first auditor and the statement of differences thereon were, as respected the report numbered 5688, in this form; the reports bearing the other numbers being in form very similar:

"[No. 5688] TREASURY DEPARTMENT"

"FIRST AUDITOR'S OFFICE, June 20, 1845"

"I have examined and adjusted the accounts of Thomas Barrett, collector of the customs for the District of New Orleans,

Page 86 U. S. 200

State of Louisiana, under his bond, dated July 6, 1844, commencing on the 25th day of July and ending on the 30th day of September, 1844, and find that he is chargeable with the following sums, viz:"

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Page 86 U. S. 202

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There was no report No. 6771 in evidence.

The whole of these records (that is to say, reports of the first auditor, the statement of differences, and the quarterly accounts current of Barrett himself), were attached together and certified by one certificate of the register and

Page 86 U. S. 206

by one impression of the seal of the Treasury, to be true copies of the said reports of the first auditor, of the said statement of differences, and of the said quarterly accounts current of Barrett.

On the trial, the government offered as evidence the copies of the reports of the First Auditor, numbered respectively 5688 &c., and also of the statements of differences thereon, "all of said papers," said the bill of exceptions,

"being fastened together as a whole and embraced in one certificate; all of which more fully and at large appears by the said transcript of said report and adjustment of account filed in this cause with the plaintiff's petitioner therein."

The defendant, "while making no objection to the form or substance of the certificate by which the authenticity of such transcript was attested," objected to the same on the grounds:

"That the Act of the 3d of March, 1797, which makes transcripts from the books and proceedings of the Treasury evidence, only applies to public defaulters in terms, and, being in derogation of common right and penal in its character, cannot be extended by construction so as to make such transcripts evidence against the sureties of such defaulters or the legal representatives of deceased sureties."

"That the said reports, which, together with the quarterly returns, constituted an entire document (said reports and returns being fastened together and authenticated by one and the same certificate), were fragmentary, incomplete, and partial."

"That the reports and statements of differences charged Barrett with gross sums and balances without any detail or exhibition of the items of which they were composed, as, for instance, in report No. 5688, a gross sum of $2502.24 is charged against him for 'duties on railroad iron imported in 1836, and not credited by the collector at the time.' [Footnote 2]"

"That it disallowed gross sums, and subtracted gross sums on and from the credit side of Barrett's account without any detail or specification of the items disallowed. That, ex. gr., by comparing quarterly return for the third quarter of 1844 with

Page 86 U. S. 207

report No. 5688 and the statement of differences, it will appear that Barrett claimed credit for $4,394.65 for contingent expenses. [Footnote 3] He was allowed only $783.46 [Footnote 4] in the report, $3,611.19 being disallowed, but the detail of the items disallowed, as appeared by the statement of differences, amounts to only $3,239.13, [Footnote 5] and there is no detail or specification of the balance of the $3,611.19 disallowed, nor is there any information explanation in the transcript of what composes that balance, or why it was disallowed."

"And further, that the said reports and statements of differences did not contain or exhibit the accounts as they were presented to and acted upon by the accounting officers of the department, nor their action nor their proceedings relative thereto."

The court held the objections good, and rejected the evidence.

The government afterwards offered in evidence certified copies of the several quarterly statements of accounts rendered by Barrett himself to the United States,

"which said certified copies aforesaid were and are on file in the suit, having been filed with the petition and contained in the said document, marked and already made part of this bill of exceptions."

This evidence was objected to on the ground that the said statement was not legal proof of the existence of a debt by Barrett, did not tend to prove the same, and was not competent evidence thereof, and that the same were fragmentary and incomplete. This evidence was excluded, and the plaintiff excepted to the ruling.

Verdict and judgment having gone for the defendant, the government brought the case here.

Page 86 U. S. 211

MR. JUSTICE HUNT delivered the opinion of the Court.

The act of March 3, 1797, proceeds upon the theory that the officers of the United States shall make up the account

Page 86 U. S. 212

of every revenue officer, that it shall adjust the same on its books, and that the account thus stated and adjusted shall stand as and for the sum for which such officer shall be liable to the government. This no doubt is subject to correction by such competent evidence as may be produced. In other words, the statement is prima facie evidence only, not absolute and conclusive.

In furtherance of this idea, it is the duty of the comptroller at once to institute suit for the recovery of the balance thus found and stated. A second result, and one indispensable to the existence of the theory, is that the books shall be evidence of the truth of the amounts thus stated and declared to be due to the United States. The act, therefore, provides that a transcript from these books and proceedings shall be admitted in evidence, and that thereupon the court is authorized to proceed to judgment and execution.

In the present case, "copies of the report of the first auditor," numbered respectively 5688 &c., and eight in number, were offered in evidence. The bill of exceptions states that no objection was made to the manner in which they were certified.

The suggestion that the act is applicable to a defaulting principal, and not a surety, is not pressed and need not be considered.

The objection that the reports were fragmentary and incomplete is not sustained by the facts. As presented in the record, each report is complete and perfect in itself. Each report contains all upon the subject during the time that it purports to represent. In the aggregate, they cover the whole period of Barrett's service. The statute says that a transcript from the books shall be admitted as evidence. A transcript or a transcribing is substantially a copy. A copy from the books, and not of the books, shall be admissible in evidence. An extract from the books, a portion of the books, when authenticated to be a copy, may be given in evidence. While a garbled statement is not evidence, or a mutilated statement, wherein the debits shall be presented and the credits suppressed, or perhaps a statement of results

Page 86 U. S. 213

only, it still seems to be clear that it is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of anyone account. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books. [Footnote 6]

Nor is the objection that the reports charge Barrett with gross sums and with balances without giving details, sustained by the facts.

The reports are made up with much particularity, and give the items on each side of the account. It is not a case of a certificate of balances merely. We are not authorized, however, to regulate the manner in which the departments shall keep their books, or to prescribe the minuteness of the detail. The items in these reports are manifestly made up from statements and details of the daily business furnished by the collector. They are necessarily condensed when carried to a ledger account, and the results of many items or of some considerable period of time, may be stated in a briefer from than they stood upon the original entries. The means of particular information are open to either party. We see no objection on this ground to the evidence now presented, and are of the opinion that there was error in its exclusion.

There was error also in excluding the evidence of the accounts rendered by Barrett, the principal. They seem to be complete, not partial or fragmentary as alleged, and being statements made by him to the government in the performance of his official duty, they are evidence against the party making them not only, but his sureties as well, and against third persons in privity with him. The authorities place the rule upon the ground 1st, that the entries made are against the interest of the party making them, and 2dly, that a surety is bound by the acts and declarations of his

Page 86 U. S. 214

principal, being within the scope of the business, as a part of the res gestae. [Footnote 7]

Judgment reversed and a new trial ordered.

[Footnote 1]

1 Stat. at Large 512.

[Footnote 2]

See supra, p. 86 U. S. 200, seventh and eighth lines from top, in Italics -- REP.

[Footnote 3]

See p. 86 U. S. 204, twenty-second line from bottom, in Italics.

[Footnote 4]

See supra, p. 86 U. S. 200, about twenty-second line from top, in Italics.

[Footnote 5]

These figures, $3,239.13, are the total of the items marked with a ++ before them on p. 86 U. S. 202 (at bottom) and 86 U. S. 203.

[Footnote 6]

Gratiot v. United States, 15 Pet. 336, 40 U. S. 370; Hoyt v. United States, 10 How. 109, 51 U. S. 132; United States v. Eckford, 1 How. 250.

[Footnote 7]

See 1 Phillips on Evidence, 4th Am. ed., p. 307, and note, also pp. 525, 526; Plaxton v. Dare, 10 Barnewall & Creswell 17; Middleton v. Melton, 10 id. 317.

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