Where an action at law was tried by a district court without a
jury, which found the facts and conclusions of law, and entered
judgment for the plaintiff thereon, and a bill of exceptions was
signed which stated that the defendant moved the court to direct a
verdict for him, on the ground that, as matter of law, no action
could be maintained by the plaintiff, and the circuit court, on a
writ of error, affirmed the judgment, and the defendant then sued
out a writ of error from this Court:
(1) The circuit court could not properly consider any matter
raised by the bill of exceptions, nor can this Court do so, because
the trial was not by a jury nor on an agreed statement of
(2) All that the Circuit Court could do was to affirm the
judgment of the district court, and all that this Court can do is
to affirm the judgment of the Circuit Court, as the latter court
had jurisdiction and this Court has it.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
Page 141 U. S. 549
On the 12th of March, 1885, the United States brought an action
at law in the District Court of the United States for the Southern
District of New York against Lebbeus H. Rogers to recover $12,000,
with interest and costs, the principal sum being the amount of the
penalty of a bond executed by Henry W. Howgate as principal, and
Rogers and another person as sureties, on the 13th of March, 1878,
which bond recited that Howgate, first lieutenant of the twentieth
infantry, had been "assigned to duty as a property and disbursing
officer, signal service, U.S.A." and was conditioned that Howgate
should at all times "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 should or might come into his hands "on
account of signal service, U.S. Army, without fraud or delay."
The complaint alleged that Howgate entered upon the duties "of
property and disbursing officer, signal service of the United
States Army;" that, while acting as such officer, he did not
carefully discharge the duties of his office, and faithfully expend
all public moneys, and honestly account for the same, and for all
public property which came into his bands "on account of the signal
service, U.S. Army," without fraud or delay, in this, that on
divers dates during the years 1878, 1879, and 1880, while acting as
such officer, he received from the United States, on account of the
signal service of the United States Army, $133,255.22, which sum he
did not faithfully expend, and had not accounted for.
The answer of Rogers, besides denying the breaches of the bond
alleged in the complaint, set up that the bond was executed, taken,
and delivered without authority of law, and in violation of
The parties filed a written stipulation, waiving the right of
trial by jury, and consenting that the cause be tried by the court
without a jury. It was so tried, before Judge Brown. In April,
1887, he filed findings of fact, which stated that he had "heard
the testimony of the witnesses." Those findings of fact were as
Page 141 U. S. 550
"1st. That long prior to 1874, the Signal Corps, under the
Department of War, was organized, and has continued from its
organization to the present time under such department. That during
such time, such Signal Corps has had property and disbursing
"2d. That prior to 25th July, 1876, one Henry W. Howgate was a
first lieutenant of the Twentieth Infantry of the United States
Army, attached to the Signal Corps."
"3d. That on the 25th July, 1876, said Howgate, by a special
order, as follows:"
"Office of the Chief Signal Officer"
"Washington, D.C. July 25, 1876"
" No. 115"
" 2. First Lieutenant H. W. Howgate, 20th infantry, brevet
captain U.S.A. acting signal officer and 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."
" 3. First Lieutenant Henry Jackson, 7th cavalry, acting signal
officer and assistant, is hereby relieved from duty as property and
disbursing officer at this office, and will turn over all
government property and funds pertaining to this office, for which
he is responsible, to First Lieutenant H. W. Howgate, 20th
infantry, brevet captain U.S.A. acting signal officer and
assistant, who will receive and receipt for the same."
" By order of the Chief Signal Officer of the Army."
"Captain 1st Inf'y, Bvt. Lieut. Col. U.S.A.
"Acting Signal Officer and Assistant
"was assigned to duty as property and disbursing officer in the
office of the chief signal officer, and he voluntarily accepted
such assignment, and entered upon the duties thereof."
"4th. That in March, 1878, said Howgate, as principal, and the
defendant, as one of the sureties, executed and delivered the
Page 141 U. S. 551
bond mentioned in, and a copy of which is annexed to, the
complaint in this action."
The fifth finding set forth in haec verba
of the bond.
"6th. That said Henry W. Howgate, twentieth infantry, while
acting as property and disbursing officer, signal service, U.S.
Army, did not carefully discharge the duties thereof, and
faithfully expend all public moneys, and honestly account for the
same and for all public property which came into his hands, but did
fraudulently, and with intent to defraud the plaintiffs, embezzle
the sum of $133,255.22."
"7th. That the said Howgate is indebted to the United States of
America for moneys received as property and disbursing officer,
signal service, U.S. Army, between the 1st day of April, 1878, and
the 31st day of September, 1881, in the sum of $133,255.22."
"8th. That such bond was made, executed, delivered, and given by
said Howgate and the defendant and the other surety
"9th. That there is now due on said bond the sum of $12,000,
with interest from 31st March, 1885, making in all $13,476."
The court found the following conclusions of law:
"1st. That the office of property and disbursing officer, Signal
Service, U.S. Army, is one created and duly authorized by law"
"2d. That the duties assigned to such officer are duly
authorized by law"
"3d. That duties covered by the bond in this action are
authorized by law"
"4th. That the bond in the complaint mentioned is a legal, valid
"5th. That the plaintiff is entitled to judgment against the
defendant for the sum of $12,000, with interest from March 31,
1885, amounting in all to $13,476, for which sum judgment is
ordered, with costs."
Thereupon a judgment was entered in the district court in favor
of the United States against Rogers for $13,476 damages and $30.87
Page 141 U. S. 552
A bill of exceptions was filed in the district court which
states that the plaintiffs put in evidence the order set forth in
the third finding of fact, and also the bond, which is set forth in
full, and a stipulation in writing, whereby the defendant admitted
"while acting as property and disbursing officer, signal
service, U.S. Army, did not carefully discharge the duties thereof,
and faithfully expend all public moneys, and honestly account for
the same, and for all public property which came into his hands,
but did fraudulently, and with intent to defraud the plaintiffs,
embezzle the sum of $133,255.22,"
and that he was indebted to the United States in that sum.
The bill of exceptions also states that the plaintiffs put in
evidence certain orders of the War Department, which are set forth,
and that it was admitted that Howgate was an officer of the regular
army of the United States. It then sets forth that, the evidence of
the plaintiffs being closed, the defendant's counsel, without
offering any testimony, moved the court to direct a verdict for the
defendant, on the ground that, as a matter of law, no action could
be maintained by the plaintiffs upon the bond proved; that the
court refused to grant that motion, and the defendant excepted to
such refusal, and that he also excepted to the decision and finding
of the court in favor of the plaintiffs.
The opinion of the district judge is reported in 28 F. 607. It
states that the only defense was that the bond was not given
voluntarily, and that the office was not one created or authorized
by statute; that, as Howgate was not bound as an officer of the
army to accept the appointment of property and disbursing officer
in the Signal Corps and to give the bond, his assignment to duty,
in the order of July 25, 1876, must be deemed to have been an
assignment upon his own application, or upon his acquiescence; that
a failure to give a bond could not have subjected him to discipline
or loss of rank in the army; that the bond must therefore be deemed
to have been given voluntarily by him and his sureties, and that,
the office and the duties assigned to the officer, and covered by
the bond, being duly authorized by law, the defendant was
Page 141 U. S. 553
In May, 1887, the defendant sued out a writ of error from the
Circuit Court of the United States for the Southern District of New
York to review the judgment. The case was decided by Judge Wallace
in that court in November, 1887, and his opinion is reported in 32
F. 890. He held that the bond was a voluntary one; that although it
should be assumed that Howgate was not an officer, and did not hold
an office, while the bond was in force, still the bond must be
treated as a contract to secure the United States against loss from
the unfaithfulness of an employee in the signal service who was
about to be entrusted with public money in the course of his
employment, and that the defendant was liable on the bond. The
judgment of the district court was affirmed, with costs, and
afterwards a motion for a reargument was denied.
The defendant then sued out a writ of error from this Court to
review the judgment of the circuit court, and the case has been
argued here on the merits. But a preliminary question arises,
which, though not alluded to in the brief of either party, must be
taken notice of by this Court.
The case was not tried in the district court by a jury or on an
agreed statement of facts. The court "heard the testimony of the
witnesses." The stipulation which was put in evidence extended only
to two specific matters. The important fact relied upon in the
opinions of both the district judge and the circuit judge, that the
bond was given voluntarily, is found as a fact by the district
court. The bill of exceptions states that the defendant moved the
court to direct a verdict for him on the ground that, as a matter
of law, no action could be maintained by the United States upon the
bond proved. It is strongly argued in the brief for the plaintiff
in error here that the bond was not a voluntary one, because
Howgate was placed under the orders of the chief signal officer,
and in effect ordered give a bond, and would have been liable to a
court-martial if he had refused to obey his superior officer.
The finding by the district court of the fact that the bond was
given voluntarily may have depended upon the "testimony of the
witnesses," referred to in the findings, as may
Page 141 U. S. 554
also the statement in the findings that Howgate voluntarily
accepted his assignment to duty as property and disbursing officer.
The question as to the liability of the defendant arises on the
bill of exceptions because it arises out of the refusal to grant
the motion to direct a verdict for the defendant, which must be
considered as a motion to find for the defendant.
There was no statute in existence which provided for the trial
in the district court by the court without a jury. It is provided
by § 566 of the Revised Statutes that
"The trial of issues of fact in the district courts in all
causes except cases in equity and cases of admiralty and maritime
jurisdiction, and except as otherwise provided in proceeding in
bankruptcy, shall be by jury."
The provision for waiving a jury in § 649 of the Revised
Statutes applies only to the circuit court, as does also a special
provision of § 700 in regard to the review by this Court of a case
tried in the circuit court by the court without a jury. There are
no similar provisions in regard to trials without a jury in the
district courts to those found in §§ 649 and 700 in respect to
It is true that in the district court, in a suit otherwise
triable by a jury, the parties may by stipulation waive a jury and
agree on a statement of facts, and submit the case to the court
thereon for its decision as to the law. Henderson's
14 Wall. 44, 81 U. S. 53
might have been done also in the circuit court, without any statute
to that effect. Campbell v.
21 How. 223, 62 U. S.
-227. This, however, is not the finding of issues of
fact by the court upon the evidence. The provisions of §§ 649 and
700 relate wholly to such finding, and not at all to the action of
the court upon an agreed statement of facts.
In the present case, the circuit court could not properly
consider any of the matters raised by the bill of exceptions, nor
can this Court do so. All that the circuit court could do was to
affirm the judgment of the district court, and all that this Court
can do is to affirm the judgment of the circuit court. The circuit
court had jurisdiction by its writ of error, and this Court has
jurisdiction in the present case.
Page 141 U. S. 555
The authority given to the circuit court by § 633 of the Revised
Statutes is merely to reexamine the final judgments of a district
court in civil actions. The same authority was given to this Court
in respect to judgments of the circuit court before the Act of
March 3, 1865, 13 St. 501, § 4, the provisions of which are now
embodied in §§ 649 and 700 of the Revised Statutes. The extent of
that authority was settled by the case of Campbell v.
before cited. That was a suit at law in a circuit
court. The whole case having been submitted to the court upon the
trial, and a jury having been expressly waived by agreement of
parties, evidence was offered on both sides. The court found the
facts, and then decided the questions of law arising upon such
facts and gave judgment for the plaintiff. The defendants sued out
a writ of error from this Court. There were in the record bills of
exceptions which showed exceptions by the defendants to the
admissibility of evidence, and exceptions to the construction and
legal effect which the court gave to certain instruments in
writing. But this Court held that in the mode of proceeding which
the parties had seen proper to adopt, none of the questions,
whether of fact or of law, decided by the circuit court could be
reexamined by this Court upon a writ of error. The opinion of this
Court, delivered by Chief Justice Taney, cited, to that effect,
18 How. 135; Suydam v.
20 How. 427, 61 U. S. 432
and Kelsey v.
21 How. 85, and said:
"The finding of issues of fact by the court upon the evidence is
altogether unknown to a common law court, and cannot be recognized
as a judicial act. Such questions are exclusively within the
province of the jury, and if, by agreement of parties, the
questions of fact in dispute are submitted for decision to the
judge upon the evidence, he does not exercise judicial authority in
deciding, but acts rather in the character of an arbitrator, and
this Court therefore cannot regard the facts so found as judicially
determined in the court below, nor examine the questions of law as
if those facts had been conclusively determined by a jury or
settled by the admission of the parties. Nor can any exception be
taken to an opinion of the court upon the admission or rejection of
testimony, or upon
Page 141 U. S. 556
any other question of law which may grow out of the evidence,
unless a jury was actually impaneled and the exception reserved
while they were still at the bar. The statute which gives the
exception in a trial at common law gives it only in such cases,
and, as this Court cannot regard the facts found by the judge as
having been judicially determined in the court below, there are no
facts before us upon which questions of law may legally and
judicially have arisen in the inferior court, and no questions
therefore open to our revision as an appellate tribunal.
Consequently, as the circuit court had jurisdiction of the subject
matter and the parties, and there is no question of law or fact
open to our reexamination, its judgment must be presumed to be
right, and on that ground only affirmed."
Various decisions in the circuit courts have followed and
applied this ruling to writs of error from them to the district
courts. United States v. Fifteen Hogsheads,
106; Blair v. Allen,
3 Dillon 101; Wear v. Mayer,
2 McCrary 172; Town of Lyons v. Lyons Bank,
8 F. 369;
Doty v. Jewett,
19 F. 337. The same principles were
applied by this Court in Flanders v.
9 Wall. 425; Kearney v.
12 Wall. 275; Gilman v. Ill. & Miss.
Tel. Co., 91 U. S. 603
91 U. S. 614
Supervisors v. Kennicott, 103 U.
, 103 U. S. 556
Bond v. Dustin, 112 U. S. 604
112 U. S. 606
Paine v. Central Vermont Railroad Co., 118 U.
; Andes v. Slauson, 130 U.
, 130 U. S.
-439; Glenn v. Fant, 134 U.
, 134 U. S.
Without considering any questions on the merits, the judgment of
the circuit court is therefore