A bond to the United States, conditioned that a property and
disbursing officer of the War Department shall faithfully discharge
his duties and faithfully account for public money and property
committed to his charge, takes effect on the day when it is
accepted by the government, and is to be regarded as of that
date.
When it appears that such a bond, duly signed by sureties, had
been offered to the government official and rejected by him as not
bearing seals, and that it was taken away by the property and
disbursing officer, the principal, and returned with proper seals,
it will be presumed, in the absence of proof to the contrary, that
the seals were attached with the consent of the sureties.
The order of the Secretary of War directing the execution of
such a bond was one which he had power to make, and, being made,
the disbursing officer was bound to have it executed and filed.
The Chief Signal Officer had the right to designate one of the
officers under him as a property and disbursing officer to whom
should belong the custody of all government property and funds
pertaining to the office of the Chief Signal Officer, and he
further had the power, under the general direction of the Secretary
of War, to provide that such officer should be responsible for the
due execution of his official duties, and, a bond having been given
for such faithful performance, and such officer having been guilty
of the forgery of vouchers and the embezzling of public moneys
officially received by him, such conduct was a plain violation of
his duty as such officer, and the condition of the bond, as it
plainly covered such conduct, was violated thereby.
A certificate given to such disbursing officer before the
discovery of his fraud that his accounts had been examined, found
correct, and were closed, did not operate to release him or his
sureties from liability on the bond.
There was no delay in the commencement of the proceedings
against the disbursing officer which injured the sureties or
operated to release the latter from their liability under the
bond.
The transcripts from the books and proceedings of the Treasury
Department
Page 166 U. S. 572
were admissible in evidence as sufficient transcripts within
Rev.Stat. § 886, and the certificate which certified that the
papers annexed thereto were true copies of the originals on file,
and of the whole of such originals, was a full compliance with the
law.
Under circumstances like those disclosed in this case, the
account between the government and its officer may be restated, and
the sums allowed him on fraudulent vouchers disallowed.
The judgment recovered against the officer was admissible in
evidence in an action against the surety on his bond although the
latter was no party to it.
On the 7th day of December, 1880, First Lieutenant H. W.
Howgate, Acting Signal Officer, U.S. Army, sent in his resignation
to the Adjutant General at Washington, through the Acting Chief
Signal Officer. At that time, there was in existence paragraph
2394, United States Army Regulations, which provided that
"an officer retiring from service shall, before final payment,
produce certificates from the several accounting officers of
nonindebtedness to the United States, and make an affidavit upon
the final voucher, stating in addition the correctness of its
several items, the place of his residence, and that he is not
indebted to the United States on any account whatever."
These certificates were obtained by Lieutenant Howgate, and his
resignation was accepted by the President, to take effect December
18, 1880. On the 27th of April, 1881, a final payment was made to
him of $104, being the balance due him for salary, etc., and his
accounts as then appearing on the books of the government stood
balanced. Soon after the date of this final payment, it became
evident from examinations made in the books of the government and
by investigations from other sources that Lieutenant Howgate had
perpetrated gross frauds upon the government by means of fraudulent
and forged vouchers, which had been accepted by the government as
genuine, and upon which his certificates for settlements had been
made. Upon a restatement being had in which these false and
fraudulent vouchers were omitted from the credits which had been
thereby given to him, it appeared that he was a defaulter in the
sum of over $133,000. On the 24th of August, 1881, an action was
commenced by the government against him to recover over
$100,000,
Page 166 U. S. 573
being the amount of moneys unlawfully drawn and obtained by him
on the United States Treasury, a list of which was set forth in the
"particulars of demand" accompanying the declaration.
Upon affidavits setting up certain facts showing the false and
forged character of the vouchers, an attachment was issued in the
action, and certain property of his was attached.
The defendant appeared by attorney, and finally, on the 24th day
of May, 1883, upon motion of the district attorney, judgment in
favor of the United States against the defendant for want of a plea
was granted, and judgment entered in favor of the plaintiff against
the defendant for $101,257.08, with interest thereon from August
24, 1881.
By virtue of this judgment, the property which had been seized
by virtue of the attachment issued in the action was sold, and the
sum of $28,000 was realized upon such sale, and the amount thereof
credited upon the judgment.
This present action was commenced on the 29th of September,
1884, on a bond alleged to have been executed by the defendants
named in the action, being Henry W. Howgate, William B. Moses, and
Lebbeus H. Rogers. Of these defendants, Mr. Moses was the only one
served with process.
The original declaration contained but one count, and alleged
that the defendants,
"on the second day of April in the year of our Lord 1878 at the
district aforesaid, by their certain writing obligatory of that
date, sealed with their seals, and now here in court produced,
jointly and severally bound and acknowledged themselves to be
indebted to the plaintiff in the sum of twelve thousand dollars, to
be paid to plaintiff on demand, yet, though requested, the said
defendants have never paid the same to plaintiff, but have wholly
neglected and refused, and still do neglect and refuse, so to
do."
Judgment for the sum was then demanded.
The bond sued on was introduced in evidence upon the trial, and
reads as follows:
"Know all men by these presents that we, Henry W. Howgate, 1st
Lieutenant 20th U.S. Infantry, William B. Moses,
Page 166 U. S. 574
Washington, D.C., and Lebbeus H. Rogers, New York City, New
York, are held and firmly bound unto the United States of America
in the sum of ($12,000) twelve thousand dollars, lawful money of
the United States, to be paid to the United States, for which
payment well and truly to be made, we bind ourselves, and each of
us, our and each of our heirs, executors and administrators, for
and in the whole, jointly and severally, firmly by these
presents."
"Sealed with our seals. Dated the ___ day of March, in the year
of our Lord one thousand eight hundred and seventy-eight, and of
the independence of said states the one hundred and second."
"The condition of this obligation is such that, whereas the
above-bounded First Lieutenant Henry W. Howgate, 20th Inf't'y, has
been assigned to duty as a property and disbursing officer, Signal
Service, U.S.A., _____ has accepted said assignment:"
"Now, if the said 1st Lieutenant Henry W. Howgate, 20th
Infantry, shall and doth at all times henceforth and during his
holding and remaining in said office carefully discharge the duties
thereof and faithfully expend all public money and honestly account
for the same and for all public property which shall or may come
into his hands on account of Signal Service, U.S. army, without
fraud or delay, then the above obligation to be void; otherwise to
remain in full force and virtue."
"Henry W. Howgate [Seal]"
"Lebbeus H. Rogers [Seal]"
"W. B. Moses [Seal]"
"Signed and delivered in presence of"
"James A. Swift"
"Anson Maltby"
"
Witnesses as to Lebbeus H. Rogers"
"James A. Swift"
"
Witness as to W. B. Moses"
The bond contained also the justification of Mr. Rogers as
surety, and purported to have been sworn to in the City of
Page 166 U. S. 575
New York on the 13th day of March, 1878. It also contained the
justification of Mr. Moses as surety, and purported to have been
sworn to by him on the 14th day of March, 1878, at Washington, D.C.
The bond also contained the endorsement of Chief Justice Cartter of
the Supreme Court of the District of Columbia, certifying that
satisfactory evidence of the sufficiency of the sureties to the
bond had been given, and that he approved the same.
A second count to this declaration was subsequently added, in
which the appointment of the defendant Howgate to the signal office
at Washington, his assignment to duty there as property and
disbursing officer, the execution of the bond bearing date the ___
day of March, 1878, its delivery and the condition contained in
such bond, the receipt of a large amount of public moneys, and the
failure to expend and honestly account for the sum of one hundred
and thirty-three thousand and odd dollars, were all set forth at
length and in detail.
The defendant Moses filed several pleas setting forth
substantially the defenses: (1) that the alleged writing was not
his bond; (2) that it was extorted from Howgate without any
authority of law; (3) that there was no such office created by law
as was mentioned in the bond, and no duties pertaining to the
office prescribed by law, or by any regulation or order of any
department or officer, and that the alleged bond was void for
uncertainty; (4) that the accounting officer of the Treasury had
duly settled the accounts of Howgate and issued to him a
certificate of nonindebtedness to the Untied states, of which the
defendant Moses had notice, which discharged him from liability as
surety on the bond; (5) that Howgate had kept and performed the
condition of the bond.
Prior to the trial, and on the second of May, 1892, Moses died,
and the suit was continued against his administrators. The trial
commenced on the 22d of March, 1893. To maintain its case, the
government gave evidence as to the organization of the Signal
Service. It then offered in evidence a duly certified copy of the
order, dated April 18, 1868, from the Adjutant General's office,
directing Lieutenant Howgate to report
Page 166 U. S. 576
for duty to the Chief Signal Officer of the Army. Also a duly
certified copy of the order from the office of the Chief Signal
Officer of the Army, dated Washington, July 25, 1876, stating
that
"First Lieutenant H. W. Howgate, 20th infantry, brevet captain,
U.S.A. acting signal officer's assistant, is hereby assigned to
duty 'as property and disbursing officer' at this office, together
with such other duties as may be assigned to him."
Also copy of a letter of Howgate's, date Washington, March 26,
1878, addressed to the Secretary of War, in which he said:
"In compliance with what I understand to be the wishes of the
department, I have the honor to enclose herewith a bond similar in
amount and form to that given by captain of the commissary
department."
It appears from the record that this bond was referred by the
War Department on the 27th of March, 1878, to the judge advocate
general for an opinion as to its sufficiency and form; that, on the
same day it was returned to the Secretary of War by the Judge
Advocate General, with a communication that the bond was in due
form
"except in that it wants the formal seals required to be affixed
to the signatures of the obligor and sureties by standing order of
the War Department of June 11, 1869,"
whereupon, on the 29th of March, 1878, the bond was returned to
Lieutenant Howgate, by order of the Secretary of War, "to have the
proper seals affixed." On the 1st of April, 1878, the bond was
returned to the War Department, accompanied by a written
communication, signed by Lieutenant Howgate, in which he said that
the bond was "respectfully returned to the honorable Secretary of
War with seals affixed as per instructions." Thereupon, and on the
second day of April, 1878, the bond was approved. The government
then called the subscribing witness to the bond as to Howgate and
Moses. The witness proved their signatures, and that they executed
the bond at the Signal Office in Washington, March 14, 1878. The
witness thought, though he was not positive, the seals were then on
the bond. (In this he must have been mistaken, as the above
statement substantially proves the contrary.) The bond was then
offered and received in evidence under defendants'
Page 166 U. S. 577
objections. The government then proceeded to give evidence to
show the breach of the condition of the bond by producing
transcripts of books and proceedings of the Treasury Department,
which it claimed were properly certified under section 886 of the
Revised Statutes of the United States, and by producing witnesses
upon the question of the forgery of the vouchers by Howgate.
Various other questions arose upon the trial in regard to
requests to charge, which are sufficiently referred to in the
opinion.
The jury found a verdict for $12,000, with interest from
September 29, 1884, and the defendants, the administrators, having
filed an admission of sufficient assets when administered to
satisfy the recovery, judgment was, on the 1st day of April, 1893,
entered upon the verdict.
The defendants' motion for a new trial for errors in law and
upon exceptions taken was denied, and upon appeal to the Court of
Appeals the judgment was affirmed, and the defendants now seek a
review of that judgment by this Court.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Various errors are assigned in this Court, the first two of
which allege that error was committed -- first, in admitting the
alleged bond in evidence, there being a material variance in date
between the instrument offered and the one described in the
declaration; second, in admitting the alleged bond in evidence when
there was no evidence tending to prove that it was sealed by W. B.
Moses.
1. We think there was no material variance, as claimed by the
defendants. The first count in the declaration states the date of
the bond as the second of April, 1878. The bond as offered in
evidence is dated the ___ day of March, 1878. In
Page 166 U. S. 578
the second count of the declaration, the bond sued on was
alleged to have been dated the ___ day of March, 1878. The bond was
offered in evidence while that count stood, and, as it showed no
variance when compared with the second count, the defendants'
counsel said that they were justified in making no objection to its
admission at that time on that ground. When in the course of the
trial the second count was withdrawn by leave of the court, it left
but the original first count in the declaration, and thereupon the
defendants moved to strike out the bond that had been admitted in
evidence upon the ground that the bond declared upon in the first
count of the declaration is described as a bond bearing date on the
second day of April, 1878, and the bond which was theretofore
offered in evidence by counsel for complainant purports to bear
date on the ___ day of March, 1878. The motion was overruled, and
defendants' counsel excepted, and it is that exception upon which
defendants' counsel now claim a reversal of the judgment.
It is seen by reference to the foregoing statement of fact that
the bond was finally sent back by Howgate to the Secretary of War,
with seals attached, in a letter dated April 1, 1878, and that it
was approved -- that is, accepted -- April 2, 1878. It is settled
that a bond of that character takes effect on the date of
acceptance, and it is from that time that it speaks.
United States v. Le
Baron, 19 How. 73; same case, on another review,
71 U. S. 4 Wall.
642,
71 U. S.
647.
There is no claim made that there ever was any other bond than
the one put in evidence, nor that the defendants were surprised or
in any way misled by the difference in the date of the bond from
the date alleged in the declaration. The objection is one of the
most extreme technicality, and does not in any way reach the merits
of the case.
The case of
Cook v. Graham's
Administrator, 3 Cranch 229, is cited by the
defendants' counsel as authority for the claim that this variance
is fatal. The question there arose upon a demurrer, and the
decision is based upon the old and highly technical rules of
pleading. Marshall, Chief Justice, said that, the plaintiff having
declared upon a bond dated the
Page 166 U. S. 579
3d of October, and oyer being prayed, the bond appeared to bear
date of the 3d of January preceding. By the oyer, the bond was made
a part of the declaration. He said there were several pleadings,
and among the rest a bad declaration, a bad rejoinder, and a
special demurrer by the plaintiff to this bad rejoinder. He then
said the variance between the date of the bond declared upon and
that of the oyer is fatal. But the principle of that case has
nothing to do with that involved in the case at bar. The question
here does not arise on demurrer, but in the course of a trial upon
the merits. The bond having been declared upon as dated the second
of April, 1878, is produced, and is shown to bear date the ___ day
of March, 1878. Otherwise it is the same bond in description as
that declared on, with no claim of there being any other bond, and
with the proof that the bond in question, although dated on the ___
day of March, was not accepted by the War Department until the
second day of April, 1878, at which time it became a completed
instrument, and from which time it took effect. It is plain to be
seen that no possible harm or injury could occur to the defendants
from disregarding this variance.
In
Nash v. Towne,
5 Wall. 689,
72 U. S. 698,
Mr. Justice Clifford, in delivering the opinion of the Court upon a
question of variance, said:
"Formerly the rule in that respect was applied with great
strictness, but the modern decisions are more liberal and
reasonable. Decided cases may be found, unquestionably, where it
has been held that very slight differences were sufficient to
constitute a fatal variance. Just demands were often defeated by
such rulings until Parliament interfered, in the parent country, to
prevent such flagrant injustice. Federal courts have possessed the
power from their organization to the present time to amend such
imperfections in the pleadings except in cases of special demurrer
set down for hearing, and are directed to give judgment according
to law and the right of the cause. Recent statutes in the states
also confer a liberal discretion upon courts in allowing amendments
to pleadings, and those statutes, together with the change they
have superinduced in the course of judicial decision, may be said
to have established the general rule in the state tribunals
that
Page 166 U. S. 580
no variance between the allegations of a pleading and the proofs
offered to sustain it shall be deemed material unless it be of a
character to mislead the opposite party in maintaining his action
or defense on the merits. Irrespective of those statutes, however,
no variance ought ever to be regarded as material where the
allegation and proof substantially correspond."
We think this exception is without merit.
2. We are also of opinion that there was no error in admitting
the bond in evidence under the objection that, at the time it was
admitted, there was no evidence tending to prove that it was sealed
by Mr. Moses. Passing the objection raised by the defendants in
error as to the form of pleadings, and referring to the foregoing
statement of facts, it appears that at the time the bond was first
tendered to the War Department, it had been signed and acknowledged
by the principal and his sureties, and the latter had each made an
affidavit justifying as to his financial ability to become such
surety, and that Howgate had presented the bond (without seals) to
the Secretary of War as in compliance with the directions of the
War Department.
The instrument being incomplete when first sent to the
department, there was no acceptance of the same at that time. Its
return by the department with the objection stated did not in any
sense make Howgate the agent of the government to procure seals to
the instrument. The government undertook no such mission, and it
was not under any obligation so to do. It stood indifferent whether
Howgate procured those seals or not. He was under obligation to
present a proper bond to the department, and if he did not do so,
the department would take its own measures consequent upon that
failure.
We have a case, therefore, where the proof is full as to the
original signing of the bond by the sureties, no pretense of any
forgery or any irregularity in that respect, the only defect being
the lack of seals. This defect was pointed out by the officer of
the government, and Howgate took back the bond to have the seals
put on, and in due time he returned it with the seals upon it.
There is no direct evidence as to when or where the seals were put
on, or as to the actual consent of the
Page 166 U. S. 581
sureties. Under these circumstances and with the proof in the
condition thus stated, we think the presumption is with the
government that the seals were placed upon the instrument with the
consent of the parties, and if there were no such consent, that is
matter of defense to be affirmatively established. The inference is
very strong that consent was given. It has been held that proof of
the execution of a bond taken with the fact of possession by the
proper party was sufficient to found a presumption of proper
delivery of the bond.
Edelin v. Sanders, 8 Md. 118. In
this case, the evidence clearly forbids the supposition that the
principal or the sureties contemplated a fraud upon the government
or intended to present to it an incomplete instrument. The latter
had already consented to act as sureties, had signed the paper
acknowledged their signatures and justified as to their financial
ability. The government was asking no favor of them or of Howgate;
it had simply declined to receive as a good bond the instrument
they had executed for the very purpose of being accepted by the
government. No change of circumstances is shown between the
original execution of the bond and its return with the seals
attached to it by Howgate. The sureties were not in the position of
having secured what they wanted by the execution of the instrument
in the manner originally shown, nor was the government in the
attitude of asking something more of these sureties after they had
secured the benefit for which the paper had been executed. As the
matter stood, when the bond was returned to Howgate, he was under
the same obligation to furnish a proper instrument that he had ever
been, and, for all that appears, precisely the same reasons for
signing the instrument originally still existed with the sureties
at the time when the seals were placed upon the bond. The evidence
is strong enough upon which to base the presumption that under
these circumstances, the seals were placed upon the bond with the
consent of the sureties, and the bond returned to the War
Department properly executed. At least a
prima facie
presumption to this effect ought to be indulged in in cases such as
this, where bonds are furnished the government
Page 166 U. S. 582
to secure the proper performance of duty by the obligors in such
bonds. This principle, we think, is illustrated in the cases of
Dair v. United
States, 16 Wall. 1, and
Butler v.
United States, 21 Wall. 272.
When the officers of the government received this bond for the
second time, and the seals were then found upon it, there was
nothing to attract their suspicion that the bond was not a proper
instrument, executed in due form by all the obligors. The fact that
it had once been presented without seals, and then, when the
objection was taken to that defect and the instrument returned to
Howgate on that account, it was thereafter again sent in by
Howgate, one of the obligors, with the seals affixed thereon, was
not a circumstance of suspicion, nor one to raise any doubt as to
the consent of the other obligors to the placing of the seals upon
the instrument signed by them. Being originally signed by them for
the purpose of acceptance by the government, there is no fact upon
which a presumption could be based that they would refuse to make
the instrument complete by adding their seals when it was found
that they had been theretofore omitted.
The cases cited by counsel for the defendants do not impair the
strength of this principle nor do away with the presumption. Among
the cases cited are
Follett's Heirs v. Rose, 3 McLean 332.
The case involved but a question of fact, which was submitted to a
jury, whether an instrument that was produced on the trial, and had
no seals attached to it, had had them attached when the instrument
was originally executed many years prior thereto.
Edelin v.
Sanders, 8 Md. 118, 129, contains nothing inconsistent with
the presumption that the seals in this case were affixed with the
consent of the obligors.
In
State v. Humbird, 54 Md. 327, the bond sued on had
no seal opposite the name of one of the obligors, and there was no
evidence that he had adopted the seal of any of the other parties
to the instrument. It was held that the instrument was not his bond
because, in fact there was no evidence of any seal belonging to him
ever having been affixed and no such seal was on the instrument
when it was produced on the trial.
Page 166 U. S. 583
In
Chilton v. People, 66 Ill. 501, a bond was sued on,
while the instrument produced had no seal. It was held that the
fact that the instrument contained the statement "sealed with my
seal," when there was no seal or scroll did not supply the defect
of its absence.
In
Barnett v. Abbott, 53 Vt. 120, the instrument, when
executed, had no seal, but when delivered to the selectmen it was
sealed. The evidence showed that the sureties did not affix the
seals themselves, and in fact authorized no one to affix them to
the instrument. The court held that it was defectively executed.
(No evidence of this nature is to be found in the case at bar.)
In
United States v.
Linn, 15 Pet. 290,
40 U. S. 311,
the second and third courts of the declaration were upon "an
instrument in writing." It was not averred that it was under seal.
The instrument was executed under an act of Congress providing for
the execution of a bond. The defendant demurred to the two counts,
and the question was certified to this Court upon a certificate of
a division of opinion (1) as to whether the obligation set out in
the declaration, being without seal, was a bond within the act of
Congress, and (2) whether such instrument was good at common law.
It was held that the instrument was not a bond within the act, but
that it was good at common law. The case went down for further
proceedings, during which a trial was had, and the case came again
before this Court on writ of error, and it is reported in
42 U. S. 1 How.
104. It seems that after the case went down, the pleadings in the
case were altered, and finally a plea was filed on the part of the
defendants alleging merely that seals were affixed to the bond
without the consent of the defendants, without alleging that it was
done with the knowledge or by the authority or direction of the
plaintiffs. It was held in the court below that the special
demurrer to the plea was bad, and the court gave judgment for the
defendant adjudging that the plea was sufficient in law. This Court
held otherwise, and it was upon the principle that the placing of
the seals thereon after the execution of the instrument was a
material alteration of it, but, if done by a stranger, and the
instrument was valid without the seals, and
Page 166 U. S. 584
was declared on as such an instrument, the action upon it could
be maintained.
In
United States v. Nelson, 2 Brock. 64, the parties to
the bond were sureties, and signed in blank before the principal,
but with full knowledge of the purpose for which the bond was to be
executed. The blanks were afterwards filled up in their absence
without express authority from them, and given to the officers of
the United States, who accepted it. It was held by Marshall, C.J.,
"with much doubt, and with a strong belief that this judgment will
be reversed," that the law is for defendants. Under the cases of
Dair, 16 Wall.
1, and
Butler, 21
Wall. 272, it would seem as if the doubts of the great Chief
Justice were not entirely misplaced.
Not one of these cases lays down any principle which shows the
ruling of the court below in this case to have been erroneous.
We come back, then, to a case where the proof was uncontradicted
of a signing of an instrument, reciting that it was sealed (when in
fact it was not), and that, when sent to the obligee, it was
returned in order that seals might be affixed. It will, in the
absence of evidence to the contrary, be presumed, when the bond is
again presented with seals, that they had been inadvertently
omitted, and that the sureties had consented to their being placed
upon the instrument in order to make it effective -- a purpose
which they must have originally intended when they executed it. Any
other presumption would tend to show that the sureties, when
signing the instrument, intended an idle thing -- that is, to sign
a paper which would not answer the purpose for which it was then
executed -- or else they intended a fraud upon, and to act
dishonestly towards, the government. Neither presumption should be
indulged in. The presumption called for under the circumstances is
the one which is based upon the view that the principal and the
sureties intended to act honestly, and to execute an instrument
which would be accepted by the government.
Upon the case as it stood, there was no question to be submitted
to the jury upon this bond. The presumption of a
Page 166 U. S. 585
final due execution arose from the evidence given on the part of
the plaintiffs, and, as none was given in explanation or in
contradiction of it, the presumption was sufficient in law to base
a finding of that fact thereon. We think that no sufficient
objection in regard to the sealing of the bond was shown, and that
this assignment of error is therefore not made good.
3. Another objection to the validity of the bond is taken by the
defendants, which is that the bond was extorted
colore
officii, and is void for that reason. The defendants allege
that there was no statute or regulation directing or permitting the
exacting of a bond from an officer of the Army assigned to duty in
the Signal Service at Washington, and discharging the duties of
"property and disbursing officer," and that therefore the bond
exacted from Lieutenant Howgate was void. Defendants' counsel
offered to prove that sometime after he had been assigned to his
position the Secretary of War, through his chief clerk, directed
that Lieutenant Howgate, before receiving moneys upon requisitions
made by him, should file a bond as particularly stated, and if he
failed to file such bond, that he should be relieved from duty as
disbursing officer; that Lieutenant Howgate protested against this
requirement for various reasons, which he stated to the chief
clerk, who informed him that the Secretary of War had made his
decision upon the question involved after due deliberation, and had
directed that unless he filed the required bond, he should be
relieved from duty as disbursing officer; that after receiving this
information from the chief clerk, Lieutenant Howgate forwarded to
the War Department the bond upon which this suit is brought. The
evidence was rejected, and exception taken by counsel for the
defendant. It is now urged that such evidence was material; that it
showed that the bond was improperly and illegally extorted from
Lieutenant Howgate under fear of losing his position as property
and disbursing officer, and that the bond is therefore void.
We think the evidence was properly excluded, although there was
no statute specially providing for the execution of a bond by one
occupying the position of Lieutenant Howgate.
Page 166 U. S. 586
The order of the War Department that a bond should be executed
was one which the Secretary of War had power to make.
It was held in the case of
United States v.
Tingey, 5 Pet. 115, that the United States had a
right to take a bond to insure the faithful performance of duty on
the part of an individual or officer where such bond was
voluntarily given, and was not in violation of any provision of
law. The particular bond in that case was held void as being
extorted under color of office because it was in plain violation of
the statute in regard to giving such bond, and it was demanded of
the party upon the peril of losing his office. The Court said,
under those circumstances, that the bond was an illegal
instrument,
"for no officer of the government has a right, by color of his
office, to require from any subordinate officer, as a condition of
holding office, that he should execute a bond with a condition
different from that prescribed by law."
The Court also said, however:
"That a voluntary bond taken by authority of the proper officers
of the Treasury Department, to whom the disbursement of the public
moneys is entrusted, to secure the fidelity in official duties of a
receiver or an agent for disbursery of public moneys, is a binding
contract between him and his sureties and the United States,
although such bond may not be prescribed or required by any
positive law. The right to take such a bond is, in our view, an
incident to the duties belonging to such a department, and, the
United States having a political capacity to take it, we see no
objection to its validity in a moral or a legal view."
See also United States v. Maurice, 2 Brock. 96;
Jessup v. United States, 106 U. S. 147,
where the same views are set forth.
The consideration or the condition of the bond must not be in
violation of law; it must not run counter to any statute; it must
not be either
malum prohibitum or
malum in se.
Otherwise, and for all purposes of security, a bond may be valid,
though no statute directs its delivery.
We do not understand by the decision in
Peters, above
cited, that the meaning of the term "voluntary bond" is that the
bond must have been offered and pressed upon the government when
never asked for or demanded by it. It is a voluntary
Page 166 U. S. 587
bond when it is not demanded by any particular statute or
regulation based thereon, and when it is not exacted in violation
of any law or valid regulation of a department. Having the right to
take a bond, the government, in a case like this, has the right to
demand it from the officer, and to say to him that, if he do not
give it, he will not be continued as "a property and disbursing
officer of the Signal Service." Such a demand, when complied with,
does not amount to the illegal exaction or extortion of the bond.
The case of a bond so procured differs radically from a case like
that of
Tingey, supra, inasmuch as the bond in the latter
case was extorted from a reluctant officer, with a condition
therein contained different from that which the statute called
for.
The power of the government to take bonds in cases of this
nature in the absence of any law or general regulation to that
effect, but by direction of the head of a department, was
recognized again in the case of
United
States v. Bradley, 10 Pet. 343,
35 U. S. 359.
In that case, the bond taken contained conditions beyond those
provided for in the act of Congress, yet it was held that those
conditions which were within the act were valid, and could not be
regarded as extorted from the obligor, although they were set forth
in the same instrument which contained other and illegal
conditions. The case of
Tingey, supra, was cited by the
Court and approved as to the principle that the United States may
take a bond as security, etc., when not in violation of any
statute.
In this case, we think the bond was a voluntary bond in the
sense that it was not illegally extorted from the defendant Howgate
under color of office, or by threats from a superior officer; that
the United States, through the Secretary of War, had the right to
demand a bond with conditions such as the bond in question
contains, and that it did not cease to be a voluntary bond merely
because Lieutenant Howgate did not gratuitously and without request
proffer it, and ask that it might be received, or because he was
reluctant to give it, and only gave it upon the demand of the
Secretary. Under the facts developed in this case, situated as
Lieutenant Howgate was with respect to the public moneys, the
United States,
Page 166 U. S. 588
having the right to take a bond, had the right to demand it
under penalty of refusing to permit him to longer remain as a
disbursing officer, or to further receive public moneys for
disbursement by him. An action brought in the Southern District of
New York by the United States against Rogers, one of the sureties
on this same bond, was decided in favor of the government by the
United States district court, 28 F. 607, and that judgment was
affirmed by the United States Circuit Court in the Southern
District of New York, 32 F. 890. On writ of error to this Court,
the judgment was affirmed, but not on any ground affecting the
merits. Both the district and circuit courts held the bond was
good, and adjudged accordingly.
We are, in view of all the facts, of opinion that the refusal to
admit the evidence offered by defendants' counsel upon this issue
did not constitute any error on the part of the learned trial
court.
4. Another objection taken by the defendants is that this bond
is void for uncertainty because there was no law creating any such
position as that "of property and disbursing officer of the Signal
Service, U.S.A.," nor any law or Army regulation defining the
duties of any such officer.
The Signal Service Corps, as a branch of the Army, was known
during the war. After its close, and as long ago as 1870, Congress,
by a joint resolution approved on the 9th day of February of that
year, authorized the Secretary of War to provide for the taking of
meteorological observations at the military stations and other
points in the interior of the continent, and for giving notice on
the northern lakes and seaboard of the approach and course of
storms. On the 28th of February, 1870, the Secretary of War
addressed a written communication to Brigadier General Meyer, Chief
Signal Officer of the Army, in which, after embodying the joint
resolution, as above referred to, the Secretary of War
continued:
"In view of this enactment, I have to inform you that you, as
Chief Signal Officer of the Army, are charged with the duties to
arise under the provisions of the same, subject to the direction of
the
Page 166 U. S. 589
Secretary of War."
On the 10th of June, 1872, one of the appropriation bills was
approved, in which was an appropriation of $250,000 to provide
materials and to pay for telegraphing the weather reports under the
authority and regulations of the Secretary of War, and on the 27th
of June, 1872, the War Department directed, in a written
communication addressed to the chief of the United States Signal
Corps, that such officer, and all persons who had been or should be
thereafter designated and employed by him for the taking of
meteorological observations, etc., were thereby recognized and
appointed as agents of the War Department for those purposes. By
the Army appropriation act of 1874, 18 Stat. 72, it was enacted
that the Signal Service should be maintained as then organized
under the authority of the Secretary of War. Thereafter, and on the
25th of July, 1876, Lieutenant Howgate, then Acting Signal Officer
and assistant at Washington, was duly assigned by the Chief Signal
Officer to duty as "property and disbursing officer" at the Signal
Officer at Washington, with such other duties as might be assigned
to him. Appropriations of a similar nature to that above mentioned
for the Signal Service have been constantly made by Congress ever
since.
The Revised Statutes also authorized, § 161,
"the head of each department to prescribe regulations not
inconsistent with law for the government of his department, the
conduct of its officers and clerks, and distribution and
performance of its business, and the custody and use and
preservation of the records, papers and property pertaining to
it."
Section 1094 of the Revised Statutes recognized the existence of
the Chief Signal Officer of the Army of the United States, and
section 1195 gave to that officer the rank of colonel of cavalry,
and directed that, under the direction of the Secretary of War, he
should have charge of all signal duty, and of all books, papers,
and apparatus connected therewith.
Upon this evidence, we think it apparent that in the proper
conduct of his office, the Chief Signal Officer had the right to
designate one of the officers detailed for service under him as a
"property and disbursing officer," to whom should belong,
Page 166 U. S. 590
as provided for in the order of such chief, the custody of all
government property and funds pertaining to the office of the Chief
Signal Officer, and that such Chief Signal Officer had the power,
under the general direction of the Secretary of War, to provide
that the property and disbursing officer should be responsible for
the due execution of his duties as such. The Secretary, in this
among other ways, recognized and approved the appointment of
Howgate as a disbursing officer, and directed him to give a bond as
such officer, and he thereby recognized, and in effect provided,
that there should be such an office. Among the duties of such an
office, it is plain, was that of receiving and disbursing those
moneys which had been appropriated by Congress for the Signal
Service, and which came to him by reason of his designation as the
property and disbursing officer of that branch of the service at
Washington. If all the duties of such officer were not clearly
specified and defined by law or the regulations of the department
in which he was serving, it was at least clearly apparent that the
public moneys which he received he was bound to honestly disburse
and to account for to the proper officers of the government. As a
security for the honest discharge of such duties, the bond in
question was given, and one of the conditions of the bond was that
he should
"faithfully expend all public moneys, and honestly account for
the same, and for all public property which shall or may come into
his hands on account of the Signal Service of the United States
Army without fraud or delay."
When he was guilty of the forgery of vouchers and the embezzling
of the public moneys received by him as said officer, there can be
no doubt or uncertainty that such conduct was a plain violation of
his duty as an officer, and that the condition of the bond
certainly and plainly covered such conduct, and was violated
thereby.
The principle decided in
United States v.
Bradley, 10 Pet. 343, that bonds and other deeds
may be, and in many cases are, good in part and void for the
residue, where the residue is founded in illegality, but not
malum in se, may be invoked in this case. The two
conditions of the bond were (1) that Lieutenant Howgate should
carefully discharge the duties of
Page 166 U. S. 591
property and disbursing officer of the Signal Service, and (2)
that he should faithfully expend all public money, and honestly
account, etc., as already stated. The condition that he should
carefully discharge the duties of the office might, perhaps, be
regarded as somewhat vague on account of the uncertainty as to what
constituted all of those duties, but there is neither vagueness nor
uncertainty in the other condition above stated. If the first
condition were to be held void for uncertainty, there is no valid
reason for holding that the second condition is also void, although
not at all uncertain. When the cause of action consists in a breach
of that particular condition of the bond which is plain, definite,
and certain, there is no reason for denying a recovery because of
the uncertainty of another condition which need not be referred to
in order to sustain the action.
Counsel for defendants ask:
"What proof was there that it was the duty of Howgate, under a
bond with a penalty of $12,000, to receive and disburse the
enormous sums charged against him in the 'consolidated transcript,'
aggregating the sum of $1,132,742.32, in the brief period of about
two years?"
The attention of the War Department had been called to the
Signal Service office at Washington by reason of a requisition for
$50,000, in February, 1878, to be paid to Lieutenant Howgate as
disbursing officer of the Signal Service. The answer to such
requisition given from the War Department, among other things, was
that "requisitions for advances should be for a less amount than
fifty thousand dollars, or should not exceed twenty-five thousand
dollars at any one time." The acts of Congress making
appropriations for the Signal Service also show that a large amount
of public moneys would be disbursed in the course of each year
through the office of the Chief Signal Officer of the Army. How
much that sum would reach it was not necessary to know accurately.
A bond exacted for the sum of $12,000 was very likely demanded in
view of the fact that frequent settlements were customary between
the officer and the Treasury Department, and that requisitions were
not to be made for any enormous sum at any one time. With such
checks
Page 166 U. S. 592
upon the receipt and disbursement of public moneys, it might
well have been thought that the amount demanded was sufficient.
Reference was also had in the letter from the War Department to the
amount of the bond demanded of a commissary of subsistence having
the same rank, though in a different branch of the service, and
also charge with the receipt and disbursement of large amounts of
public moneys. A bond in the same penalty as that given by such an
officer was evidently supposed to offer sufficient security for the
government. Although, when the bond was executed, it might not have
been supposed that the officer would have such large sums to
disburse, that fact forms no defense to an action on the bond,
which was conditioned for the honest disbursement of the public
moneys, whatever might be their amount.
So far as this cause of action is concerned, the bond is not
void for uncertainty, and the exception of the defendants is
unsustained.
5. The defendants also claim the existence of error in the
decision of the court below that the settlement of Howgate's
accounts was not a bar to the action. The evidence shows that his
accounts had been regularly stated and passed upon by the
accounting officers of the Treasury, and a certificate given him of
nonindebtedness. These facts, the defendants say, were matters of
record in the Treasury Department, and they urged that the
plaintiff should therefore be estopped from maintaining this
action.
To the same effect is the objection that the government is
estopped from maintaining this suit by the inequitable
representations and conduct of their agents which misled the surety
Moses to his prejudice.
It is necessary to see what this alleged settlement was that is
set up by the defendants as a bar to the maintenance of this
action. It is seen by reference to paragraph 2394 of the Army
regulations, which is set forth in the statement of facts that it
was necessary to obtain certificates of nonindebtedness before an
officer retiring from the service could obtain final payment of his
salary. Immediately upon his resignation's being offered --
December 7, 1880 -- Lieutenant Howgate proceeded
Page 166 U. S. 593
to obtain the necessary certificates. He procured from the third
auditor of the Treasury Department various certificates under dates
of October 1, December 10 and 23, 1880, January 6 and April 26,
1881. These certificates were for different quarters for the years
1879 and 1880, and certified that the auditor had examined and
adjusted the account of H. W. Howgate, Lieutenant 20th infantry,
A.S.O., and found the same balanced, "as appears from the statement
and vouchers herewith transmitted for decision and
certification."
The last certificate, signed by the third auditor, reads as
follows:
"
Certificate of Nonindebtedness"
"Treasury Department"
"Third Auditor's Office,
April 26, 1881"
"It is hereby certified that the accounts and returns of H. W.
Howgate, Lt. 20th Inf., late Acting Signal Officer, U.S.A. have
been examined, found correct, and are closed."
"This certificate is granted to satisfy the pay department that
the above-named officer is not indebted to the United States on the
books of this office at the date hereof."
Certificates similar in their nature were obtained from the
officers of the Chief of Engineers, the Quartermaster, the Ordnance
Department, Second Auditor's Office, the Paymaster's and the
Commissary General's Departments. Each certified substantially that
Howgate "was not charged on the books of that office as a debtor to
the United States," or "that his returns had been received,
examined, and found correct," or "that there were no charges
remaining against him on the books of the office."
There is no proof that any one of these certificates was ever
seen by the sureties, or was known by them to exist; nor is there
evidence that a settlement of any nature had ever been made between
the principal and his sureties based upon or by reason of the
certificates, nor that the condition of the sureties had been at
all changed because of the existence of the certificates, or any
one of them. The certificates were, of course, based only upon what
appeared after an examination
Page 166 U. S. 594
of the books in each department. Undoubtedly they were
prima
facie evidence of the facts they certified to, and, in the
absence of any evidence of mistake or of fraud attacking the
integrity of the items, or any of them, appearing on the books, and
upon which the certificates were based, they would be conclusive in
favor of the officer in any action against him.
Soule v. United
States, 100 U. S. 8,
100 U. S. 11;
United States v. Bell, 111 U. S. 477;
Ex Parte Randolph, 2 Brock. 447, 475;
United
States v. Eckford, 1 How. 250,
42 U. S. 263;
United States v. Hunt, 105 U. S. 184,
105 U. S. 187.
They would not, however, be conclusive as against evidence of the
forgery of any vouchers upon which the accounts had been founded
and the settlement arrived at. This is too plain for argument.
It is urged, however, that even if the certificates and books
upon which they were based would ordinarily be open to explanation,
and would not be regarded by the courts as conclusive, the rule is
nevertheless changed in this case by the action of the officers of
the government, by reason of which the government is estopped from
showing the falsity of the certificates and the forgery of the
vouchers. The government is charged with laches in failing to take
proper means of enforcing its demands against Howgate, and in
failing to promptly notify the sureties of the fact of his
defalcation and of their liability to respond on that account to
the extent of the penalty of the bond.
As late as April 26, 1881, the government was ignorant of any
cause of suspicion against Lieutenant Howgate, for on that date the
third auditor of the Treasury Department certified to the
correctness of Howgate's accounts and returns. Between that time
and the 24th of August, 1881, the suspicions of the officers of the
government were aroused, an examination of the books was made,
other investigations were entered upon, and the facts of the
defalcation discovered, and on the last-named day, a suit was
commenced against Howgate for the purpose of recovering the sum of
$101,257.08. The "particulars of demand" accompanying the
declaration showed that the suit was commenced to recover money
unlawfully drawn and obtained by Howgate from the Treasury of the
United States
Page 166 U. S. 595
on checks drawn by him on the Treasurer for the amount stated,
aggregating the amount sued for in the action. The defendant
appeared in the action by attorney, and finally judgment for want
of an answer was entered on the 24th of May, 1883, and $28,000,
subsequently realized on the sale of the defendant's property, was
credited on the judgment.
The suit had been commenced in the Supreme Court of the District
of Columbia, and Howgate, the defendant, and Moses, one of the
sureties on his bond, were residents of the City of Washington in
that District, and had been for many years. It is impossible to
suppose that the fact of the alleged defalcation of Howgate was
unknown to Moses. The record shows that a personal service upon
Howgate was not obtained for the commencement of the action against
him, which would imply an inability to discover him within the
District or else his absence therefrom. The affidavit used upon
obtaining the attachment showed that Howgate was aware of the
investigation going on in relation to his accounts, and that, with
such knowledge, he suddenly, and without declaring any other
business or reason for leaving, left the District without
indicating how long he would remain, or when, if ever, he would
return. The presumption is very strong from all these circumstances
that Moses, after Howgate's departure from Washington, knew of the
alleged defalcation, and of the suit brought by the government
against Howgate. There can be no well founded claim that such suit
was not commenced promptly, and there is no evidence that it was
not prosecuted with due diligence, even though no answer had been
put in up to the time when the judgment was taken. Various reasons
might have existed for the delay between the commencement of the
action and the entry of judgment, which cannot be said to have been
unusual. There is nothing in the fact that the government sued
Howgate alone, without calling upon the sureties in the bond which
would operate to the injury of the sureties. And there is no
evidence that the sureties suffered any damage by reason of any
action or lack of action on the part of the government.
As to the certificates of nonindebtedness, there is no legal
Page 166 U. S. 596
presumption that the sureties had any knowledge that these
certificates had ever been given to Howgate, either at the time of
or soon after his resignation, or at all. The case of
United
States v. Alexander, 110 U. S. 325,
does not hold that there is any such presumption. In that case, the
Secretary of the Treasury having abated taxes against the
defendant, under an act of Congress, the Commissioner of Internal
Revenue gave notice of the fact to the principals in the bond, who
then gave the same notice to their sureties, and the case was not
decided on the ground of any presumption of knowledge on the part
of the sureties as to the abatement.
We have looked at the cases cited by the counsel for the
defendants upon this branch of the case. They all show either the
giving of notice to the sureties of payment of the debt for which
they were originally liable, or an admission of payment of the debt
by the holder thereof, or a declaration of the holder of the
security that he would exonerate the surety, or else a reliance by
the sureties upon some conduct of the holder of the security
towards them, and a necessary injury to them if the holder should
be permitted to subsequently assume a different attitude. The cases
referred to are placed in the margin.
*
The case here is entirely barren of evidence that the sureties
had knowledge of any fact going towards their exoneration, or that
they acted or failed to act in any particular with reference to
their principal by reason of the conduct of the government
officials or the existence of the certificates mentioned. We are of
opinion also that no such exonerating fact existed.
We are therefore unable to find, either in the certificates
alluded to or in the action of the officials connected with the
government, anything precluding the inquiry as to the actual and
true state of the accounts upon which the judgment in
Page 166 U. S. 597
this case rests. The exception of the defendants upon this
ground cannot prevail.
6. The defendants also took exception to the decision of the
court below in permitting plaintiff to introduce certain
transcripts of the books and proceedings of the Treasury Department
for the purpose of proving the actual state of the accounts between
the government and Howgate. These transcripts were objected to on
two grounds: (1) that they showed on their that they were mere
statements of balances, and not the entire account between the
parties; (2) that they showed that the government officers had made
a restatement of Howgate's account after he ceased to be property
and disbursing officer, and that there was no authority for making
such restatement, and that it was not evidence against the
defendants. We think that neither objection is well founded.
The transcripts were received under section 886 of the Revised
Statutes of the United States, and were certified to under the hand
of the Secretary of the Treasury and the seal of the Treasury
Department on the 19th of November, 1884. There was also a
certificate from the third auditor of the Treasury Department
attached to the papers, and certifying that they were transcripts
from the books and proceedings of the Treasury Department, and that
the papers annexed thereto were true copies of the originals on
file, and of the whole of said originals. Then followed a copy of
the bond, and then another certificate from the third auditor that
he had
"examined and adjusted the account of H. W. Howgate, Lieutenant
20th infantry, property and disbursing officer Signal Service U.S.
Army, from April, 1878, to September, 1880, and found the balance
as follows"
(giving the balance for each fiscal year for the years 1879,
1880, and 1881, and resulting in a balance due the United States of
$133,255.22). This last certificate thus made by the third auditor
does not purport to certify to a copy of the whole account between
the government and Howgate. The account which first follows the
certificate is termed a "consolidated settlement," and is simply a
summary of the amount, giving only the total amount due the United
States for each of the fiscal years stated. It does not purport
Page 166 U. S. 598
to be the full account between the parties. Following that
summary or "consolidated account," however, are the transcripts
from the books of the Treasury Department containing the account of
Howgate, "property and disbursing officer, Signal Service of the
United States, with the United States," including items of credits
and of disbursements. In other words, both sides of the account are
given in these transcripts, and also the items of difference --
that is, those items of credit which had been originally claimed by
and allowed to Howgate, but which were subsequently disallowed by
the accounting officers of the government on a restatement of the
account, were given in full. This restatement had been made in
1884, on the ground that many of the vouchers for items that had
been formerly allowed Howgate were forged or otherwise fraudulent.
Copies of the alleged fraudulent vouchers are also set forth. If,
therefore, the so-called "consolidated settlement" were
inadmissible as not being a full account, it was wholly immaterial,
because the same facts would appear from an examination of the
account between Howgate and the United States, both sides of which
were contained in the other transcripts accompanying that
consolidated settlement.
We think the certificate as to those transcripts was entirely
sufficient, and the transcripts themselves were admissible as
sufficient transcripts from the books and proceedings of the
Treasury Department, within section 886, Rev.Stat., and that the
certificate which certified that the papers annexed to the
transcript were true copies of the originals on file, and of the
whole of such originals, was a full compliance with law.
United
States v. Pinson, 102 U. S. 549;
United States v. Bell, 111 U. S. 477.
As to the objection that the transcripts show on their face that
the accounts therein referred to had been restated since the
acceptance of the resignation of Lieutenant Howgate, and that there
was no authority to make such restatement, we think the objection
untenable. As has been heretofore stated, there had been no actual
and formal settlement between the government and Howgate, and no
admission made by the government for the purpose of discharging him
and his sureties
Page 166 U. S. 599
from liability on the bond. Howgate, for the purpose of
obtaining payment of his own salary, had procured certain
statements from various departments, acknowledging that, by the
books of those departments he did not appear indebted to the
government, and by virtue of those certificates he had obtained
final payment of his salary; but subsequently to that time, when
other facts became known, causing an investigation into the state
of the accounts, it became apparent that Lieutenant Howgate at the
time when he obtained these certificates of nonindebtedness, was in
truth a defaulter, and that he owed the government over a hundred
thousand dollars. After the final payment of his salary, when these
facts became known, the acting Chief Signal Officer made up a
statement of the account between Howgate and the government which
showed in detail the vouchers and checks which were known to be
fraudulent, with the names of witnesses, etc., which statement was
sent to the Secretary of War, together with a report of the officer
making up the account showing the true state of the account. After
that time, and in compliance with the request of the Solicitor of
the Treasury, the Secretary of War sent to the Second Comptroller
of the Treasury this statement of the account, together with a copy
of the report of the Acting Chief Signal Officer which accompanied
it, and the Secretary stated that the papers were forwarded to the
Second Comptroller with a view to a restatement of the accounts of
Howgate for use in a suit on his bond of April 2, 1878.
It therefore appears that this so-called "restatement of the
account" was no mere gratuitous and unsolicited work on the part of
the clerks of the Treasury Department, but that the restatement was
made substantially by direction of the Secretary of War, under the
supervision of the Second Comptroller of the Treasury, and asked
for by the solicitor of that department, and it was all done that
from the books and proceedings of the Treasury Department a
transcript might be made that would show the actual state of the
accounts between the government and Howgate after excluding these
false and forged vouchers upon which he had obtained credit, and by
means of which he
Page 166 U. S. 600
was enabled to procure the certificates of nonindebtedness above
referred to. The idea that, under circumstances like these, there
would be no power in the officers of the government to restate an
account between the government and an officer by disallowing
credits given him upon false and forged vouchers cannot be
entertained for a moment. The cases already referred to in this
opinion dispose of such a claim.
7. One other objection was taken upon the trial, and that was to
the admission of the judgment recovered against Howgate by the
government.
Neither surety was a party to that judgment, which was solely
against Howgate, and the record in that case was admitted in
evidence under the objection and exception of the defendants. We
are of opinion that the judgment was properly admitted in evidence
against the surety. It proved, at least
prima facie, a
breach of the bond by showing the amount of public moneys which
Howgate, the principal, had failed to faithfully expend and
honestly account for. It was far beyond the penalty in the bond,
and, unexplained, the judgment was sufficient evidence of the
breach of condition.
Drummond v. Executors of
Prestman, 12 Wheat. 515;
United
States v. Allsburg, 4 Wall. 186;
McLaughlin
v. Bank, 7 How. 220;
Stovall v.
Banks, 10 Wall. 583;
Washington Ice Co. v.
Webster, 125 U. S. 426.
This completes the examination of the various questions which
were argued at the bar by counsel for the defendants. Other
questions have been raised in the briefs, and have received our
careful attention. We find nothing in the record which justifies a
reversal of the judgment, and the same is therefore
Affirmed.
*
United States v. Alexander, 110 U.
S. 325;
Harris v. Brooks, 21 Pick. 197;
Carpenter v. King, 9 Met. 511;
Baker v. Briggs, 8
Pick. 131;
Taylor v. Lohman, 74 Ind. 418;
Thornburg v.
Madren, 33 Ia. 380;
Chambers v. Cochran, 18 Ia. 159;
Gordon v. McCarthy, 3 Whart. 406;
Brooking v. Farmers'
Bank, 83 Ky. 431;
Aaron v. Mendel, 78 Ky. 427; 1
Greenl. Ev. § 207.