1. Where
nil debet is pleaded, it is not error to
strike out a notice of special matter to be given in evidence,
where evidence of such matter is admissible under the plea.
2. In a suit by the United States upon the official bond of a
collector of internal revenue, transcripts from the books of the
Treasury Department of his accounts, containing the usual items and
showing the balances between the debits and credits, were put in
evidence by the plaintiff.
Held that the papers, being in
proper form and duly certified, are admissible, and an objection
disclosed only by comparing them with other transcripts offered by
him lies not to the competency of the evidence, but to its
effect.
3. Where he served for two successive terms, his sureties under
his second appointment are liable for taxes which he, during his
service thereunder, collected upon assessment rolls received during
the first term, and for moneys or stamps remaining on hand at the
expiration of that term.
4. Although the transcripts are evidence of the amount, date,
and manner of the officer's indebtedness, his sureties may, by
other Treasury transcripts, show that his default, in whole or in
part, occurred during his first term, that
credits were applied on a prior account, although they belonged
to subsequent accounts, and that to the latter debits were
improperly transferred.
5. It is not a valid objection to the introduction of the
transcripts offered by the sureties that they do not on their face
establish errors in the adjustment upon which the plaintiff relies,
but require further evidence. The failure to produce such evidence
furnishes ground only for their ultimate exclusion or for an
instruction to the jury as to their effect.
Page 106 U. S. 526
The facts are stated in the opinion of the Court.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
This action was brought by the United States upon an official
bond of Benjamin B. Emory, as Collector of Internal Revenue for the
Third District of Mississippi, against himself and Stone and
McAlexander, two of his sureties. The bond is dated March 29, 1870,
is in the penal sum of $50,000, and reciting that Emory had been
appointed and had received a commission as collector for the
district mentioned, dated December 29, 1869, is conditioned
that
"he shall truly and faithfully execute and discharge all the
duties of the said office according to law, and shall justly and
faithfully account for and pay over to the United States, in
compliance with the orders and regulations of the Secretary of the
Treasury, all public moneys which may come into his hands or
possession,"
etc. The breach alleged is that he failed to account for and pay
over the sum of $57,497.84 of public moneys which had come into his
possession as such collector.
The defendants pleaded
nil debet, and gave notice of
special matter to be given in evidence under that plea, among
others, that
"the alleged liability for which this suit is brought arose, if
it arose at all, under a bond given by said Emory as such collector
in October, 1869, and not under the bond on which this suit was
brought,"
&c. They also pleaded payment before suit brought, and also
an argumentative plea of
non est factum, to which a
demurrer was sustained. Subsequently they filed an additional plea
traversing the alleged breach of the condition of the bond.
Before the trial, the district attorney moved to strike out the
defendants' plea of
nil debet with the notice of special
matter attached, and an order sustaining that motion appears from
the record to have been made, although from a bill of exceptions
taken at the time it is stated that the motion was sustained only
so far as the notice was concerned, and overruled as to the
plea.
Page 106 U. S. 527
There was a verdict in favor of the United States for
$10,003.52, and judgment rendered thereon.
Writs of error were sued out by both parties, and are now
prosecuted to reverse that judgment for errors alleged to have been
committed by the court in its rulings on the trial, duly excepted
to by the parties respectively, and brought upon the record by
bills of exception. They will be considered in their order,
beginning with those assigned by the defendants below.
1. There was no error, as alleged, in striking out the notice of
the special matter to be given in evidence under the plea of
nil debet. It was proper to strike it out because it was
matter which denied the plaintiff's whole cause of action, which
consequently it was bound to meet with its own evidence in the
first instance, and which therefore the defendants traversed by the
plea of
nil debet, and the plea denying the alleged breach
of the condition of the bond. Any evidence which would have been
competent under the notice would have been equally so without it,
and in point of fact all the evidence offered on the part of the
defendants, which was competent under the notice, was admitted
under the pleas.
2. The first bill of exceptions taken by the defendants states
that
"The said plaintiff offered to read to the jury certain
transcripts from the books of the Treasury Department at Washington
city, and certified transcripts of papers on file in said
department, touching the official conduct of B. B. Emory as late
Internal Revenue collector for the Third District of Mississippi,
which said transcripts are dated respectively, _____, as shown by
the certificates of the Secretary of the Treasury. And to these
transcripts the defendants had filed written exceptions and
objected to their introduction as evidence for the reasons assigned
in said exceptions."
The court overruled the objection and permitted the transcripts
to be read in evidence, to which reading the defendants excepted,
and it is now assigned for error.
In another part of the record there is this statement:
"The following are transcripts from the books of the Treasury
Department at Washington and of papers on file, which are referred
to in the bills of exception taken and filed in this cause. "
Page 106 U. S. 528
Then follows forty-seven printed pages of matter, consisting of
certified statements of account from the books of the Treasury
Department and copies of numerous papers on file apparently
relating to the accounts of this collector. But it is impossible to
know with accuracy from the record which of these were offered in
evidence by the plaintiff and to which the objection was intended
to apply, for it appears from another bill of exceptions -- and
there were six in all -- which was taken by the plaintiff that some
of these transcripts from the books of the Treasury Department were
offered by the defendants themselves and admitted in evidence
against the objection of the district attorney, a ruling we are
called upon to consider hereafter, as it is alleged as error on the
part of the United States under the writ of error which it
prosecutes. It is only by subtracting these from the entire mass
that we can infer to what the defendants objected. The exceptions
filed to these transcripts, referred to in the bill of exceptions
and found elsewhere in the record, are as follows:
"1st. The certificates are not such as the law requires."
"2d. The transcripts are incomplete, and do not set out the
entries on the books of the department, and are not transcripts
from the books, but summaries of what the officers suppose the
books contain."
"3d. The reports and receipts of Emory, as collector for
assessments, and other papers connected with the settlement of his
accounts by the department, are not set out in said
transcripts."
"4th. Emory's monthly and quarterly reports are not set out in
said transcripts."
"5th. Emory's receipts for assessments are not set out in said
transcripts."
"6th. Facts are set out in said transcripts which did not come
before the department, which were not in the course of business,
and of which its transcript is no evidence."
"7th. Said transcripts are partial, imperfect, and do not
present the whole record statement in regard to said Emory's
accounts as late collector as aforesaid."
The particulars in which the transcripts in question are
supposed
Page 106 U. S. 529
to be open to these exceptions are not pointed out to us, either
by anything in the record or in argument by counsel, and there is
nothing upon their face which suggests them to us. The papers in
question seem to be in the usual form of such statements, and
purport to be copies from the books of the Treasury Department of
the accounts between the collector and the United States,
containing the usual items, and showing the appropriate balance
between the debits and credits. If there is anything in them
illegal, insufficient, or incomplete, we have not been able to
discover it.
United States v.
Gaussen, 19 Wall. 198.
It is, however, said by counsel for defendants that in the
Treasury transcript, showing an adjustment of the collector's
accounts, covering all his official time prior to the date of
giving the bond sued upon, he is charged with five items,
aggregating $50,063.20, and that this account is balanced by
credits, three items of which purport to be transfers to himself,
as his own successor, amounting to $30,534.42, which, it is
alleged, was an existing indebtedness to the government. In the
next adjustment he is charged with the same items, showing an
arrearage at that time of $60,613.85, and a balance is found
against him as occurring since the date of the bond in suit, the
effect of which, it is argued, is to shift a default from the first
to the second bond, and it is claimed that for this reason the
transcript offered by the district attorney was not competent
evidence, and should have been excluded from the jury.
But this objection did not arise upon the face of the accounts
offered in evidence by the United States, but only after a
comparison between them and that offered by the defendants, and
therefore would lie not to the competency of the evidence, but to
its effect. And while it is true that the sureties sued are liable
only for money received during the term for which the collector was
appointed, covered by the bond to which they are parties, and not
for the misapplication of money received and misapplied prior or
subsequent to that term.
United States v.
Eckford, 1 How. 250. It is nevertheless equally
true that they are liable for taxes collected during that term,
upon assessment rolls received during a prior term, or for moneys
or stamps on hand
Page 106 U. S. 530
at the expiration of a former term and remaining in his
possession at the beginning of a new one, for the collector is
responsible as well for moneys and stamps retained by him as his
own successor as for those received by him from any other
predecessor. And the separate adjustment of his accounts for both
periods, made at the Treasury Department upon its books, is
prima facie evidence not only of the fact and of the
amount of the indebtedness, but also of the time when and the
manner in which it arose. It is, of course, always open to the
defendants sought to be charged to show by opposing proof that the
default charged occurred before the commencement of their
liability. We repeat what was said in that case.
"The amount charged to the collector at the commencement of the
term is only
prima facie evidence against the sureties. If
they can show by circumstances or otherwise that the balance
charged in whole or in part had been misapplied by the collector
prior to the new appointment, they are not liable for the sum so
misapplied."
P.
42 U. S.
263.
3. It is next assigned for error that the court omitted to
charge the jury
"that the facts not properly appearing on the books of the
Treasury Department could not be embraced in the transcript, facts
of which the department had no knowledge, and if so embraced they
did not constitute proof in this case."
This alleged omission on the part of the court is stated in the
bill of exceptions to have occurred in connection with the
following instruction, which was given:
"That while it was true that the plaintiff could only recover in
this case for money actually collected by Emory, and not accounted
for to the government, yet if they believe from the evidence that
Emory had received the assessment rolls of the taxes imposed, that
was
prima facie evidence that he had received the money on
them in the absence of any other or further proof on that
subject."
Although the giving of this charge was excepted to, the error
assigned upon it was not pressed in argument; nor could it be
maintained, as the instruction was undoubtedly correct. Nor does it
appear from the bill of exceptions that the court was asked to give
the instruction the omission of which is now complained of,
although it states that for that cause the defendants
Page 106 U. S. 531
then and there excepted. But, waiving the form of the exception,
it must be overruled because however correct the rule may be which
it states the court omitted to give to the jury, it is not shown by
anything in the present record how it could apply to the case. It
was not shown that there were any facts embraced in the transcripts
which could not properly appear on the books of the Treasury
Department, nor any of which the department had not knowledge, and
no attempt has been made to point them out in argument.
This disposes of the errors assigned by the defendants, in none
of which do we find any ground for disturbing the judgment.
4. A bill of exceptions was taken during the trial on the part
of the United States. From that it appears that the defendants
offered in evidence a certified copy of the official bond of Emory,
as Collector of Internal Revenue for the Third District of
Mississippi, under an appointment dated October 2, 1869, the bond
being dated October 11, 1869, with sureties other than the present
defendants, and a certified transcript from the books of the
Treasury Department of an adjustment of his accounts as such
collector, under that appointment, from November 4, 1869, to March
28, 1870, showing a balance due from him to the United States,
"transferred to himself as his own successor," of $4,027.52, and
with which he is charged in the next adjustment under the bond sued
on, dated March 29, 1870, and in which also he is credited with
$13,050.17 as "amount of taxes on lists transferred to himself as
collector under second bond," and with $13,456.13 as "amount of
stamps transferred to himself as collector under second bond,
viz., tobacco, $8,098.88; spirits, $5,327.25." To the
introduction of these documents in evidence the district attorney
objected. The objection was overruled, the evidence was admitted,
and an exception was taken, on which error is now assigned on the
part of the United States.
The objection, however, cannot be sustained. We have already
stated that it was competent for the defendants to show in their
own exoneration that the balance charged against the collector upon
the adjustment of his accounts during the period when they were
liable for his defaults in fact
Page 106 U. S. 532
had arisen by virtue of some default accruing during a prior
term. For that purpose, and as tending to prove such a claim, it
was competent and proper to show that credits had been given to him
on a prior account that belonged to subsequent ones, and that he
had been debited in the latter with items improperly transferred
from previous ones. And to do that, the accounts in which these
charges and credits appeared were manifestly pertinent and
material. It required, of course, further evidence to show the
impropriety of the adjustment unless the facts appeared on the face
of the papers, as they did not in this case, and the failure to
follow them up with such further evidence might have been a
sufficient ground, when the defendants had rested, for granting a
motion to rule out the testimony or for an instruction to the jury
as to its effect, but the objection would not prevail in the first
instance to its introduction.
We find no error in the record.
Judgment affirmed.