Under the second and fourth sections of the Act of 3 March 1797,
ch. 368, a certified transcript from the books of the Treasury is
evidence against the defendant, and no claim for any credit can be
admitted at the trial which has not been presented to, and
disallowed by the accounting officer of the Treasury (unless in the
cases excepted by the act), although no proceedings have been had
against the debtor, under the Act of 3f March 1795, ch. 289, by
notification from the Treasury Department, requiring him to render
to the auditor of the Treasury his accounts and vouchers for
settlement.
Quaere whether the Act of 3 March, 1795, ch. 289, is
not virtually repealed by the Act of 3 March 1797, ch. 368?
The official bond given by a receiver of public moneys, does not
extinguish the simple contract debt arising from a balance of
account due from him to the United States. An action of assumpsit
for the balance of account and an action of debt upon the bond
against the principal and sureties may be maintained at the same
time.
In an action against the receiver not describing him in his
official capacity, evidence may be given of moneys received in his
official capacity, and under a count for money had and received,
evidence may be given of public stock received by him where such
stock is by law made receivable at par in payment for lands sold by
the United States.
It is not necessary that a bill of exceptions should be formally
drawn and signed before the trial is at an end. The exception may
be taken at the trial and noted by the court, and may afterwards,
during the term, be reduced to form and signed by the judge. But in
such cases it is signed
nunc pro tunc, and purports on its
face to be the same as if actually reduced to form and signed
during the trial. It would be a fatal error if it were to appear
otherwise.
Page 22 U. S. 652
MR. JUSTICE DUVALL delivered the opinion of the Court.
The plaintiff in error in this case, who was defendant in the
court below, was a receiver of public money in one of the land
offices in the District of Mississippi, and being indebted to the
United States in a large amount, an action of assumpsit was
instituted against him to recover the balance due, which was stated
to be $102,478.85 1/2, made up of cash and stock,
viz., in
cash $93,639.93 1/2, and in Mississippi stock $8,838.92. The
declaration contains only one count, which is for money lent and
advanced, laid out and expended, and for money had and received. To
this the general issue of
nonassumpsit was pleaded, and
issue was joined. The attorney for the United States, to support
the claim, offered in evidence a transcript from the books and
proceedings of the Treasury, authenticated under the seal of the
department, pursuant to an act to provide more effectually for the
settlement of accounts between the United States and receivers of
public money, passed on 3 March, 1797, to the admission of which
evidence the attorney for the defendant objected:
1. Because there had not been any proceedings against him under
the Act of 3 March, 1795, entitled "An act for the more effectual
recovery of debts due from individuals to the United
Page 22 U. S. 653
States," by notification from the Treasury Department, requiring
him to render to the Auditor of the Treasury his accounts and
vouchers in order to a settlement, as directed by that act.
2. Because the account offered in evidence was against the
defendant, as receiver of public money, west of Pearl River, and
that the defendant, as such receiver, had executed a bond with
security, according to law for the faithful discharge of his duties
as such, and that the remedy against him being upon his official
bond alone, an action for money had and received would not lie.
3. Because the declaration was against him in his individual
capacity, and the evidence offered showed that he was liable, if at
all, in his public character as receiver of public money west of
Pearl River, and not in his individual capacity. But the court
overruled the objection, and was of opinion that the transcript was
evidence to support the declaration, and permitted the same to go
to the jury, to which opinion of the court the defendant by his
counsel excepted, and the proceedings were brought up to this Court
by writ of error for their revision.
In the argument of this cause, the counsel for the plaintiff in
error has made no question which does not appear in the record. He
contends that the act of 1795 is not repealed by that of 1797, and
that the suit of the United States against Walton cannot be
maintained, because, before a suit can be sustained by the United
States against a debtor, he is entitled, according to the
provisions of the act of 1795, to a notification from
Page 22 U. S. 654
the Comptroller of the Treasury to appear before the Auditor
with his accounts and vouchers, affording him an opportunity of a
just and fair settlement upon a full investigation of his accounts.
That without such investigation, many items for which the debtor
may claim a credit may be rejected for want of the necessary
explanations.
To this reasoning the Attorney General, on behalf of the United
States, replies by insisting that the act of 1795 is virtually
repealed by that of 1797, which contains similar and additional
provisions incompatible with those of the former act, and that the
debtor has ample opportunity of a full and just examination of his
accounts under the last mentioned act. The Court deems it
unnecessary to decide the question whether the act of 1795 is
repealed by that of 1797 because the last mentioned act contains
ample provision for this case. It is provided by the 2d section of
that act
"That in every case of delinquency where suit has been or shall
be instituted, a transcript from the books and proceedings of the
Treasury, certified by the Register, and authenticated under the
seal of the department, shall be admitted as evidence,"
&c. And by the 4th section it is enacted
"That in suits between the United States and individuals, no
claim for a credit shall be admitted upon trial but such as shall
appear to have been presented to the accounting officers of the
Treasury for their examination and by them disallowed in whole or
in part unless it should be proved to the satisfaction of the court
that the defendant is, at the time of trial, in possession of
vouchers
Page 22 U. S. 655
not before in his power to procure and that he was prevented
from exhibiting a claim for such credit at the Treasury by absence
from the United States or some unavoidable accident."
These positive provisions of the law must be disregarded if we
say that the authenticated transcript from the Treasury Department
is not evidence. They are too plain to require argument, and the
debtor has a fair opportunity of establishing his account, if just,
without a notification from the Comptroller, according to the act
of 1795. In the first place, he states his account, and when
stated, it is rendered to the Auditor, who examines it and makes a
report to the Comptroller, by whom it is revised. Afterwards, in
case of a suit, he has an impartial trial in court, where an
opportunity is again afforded him of supporting his claim, and if
the court and jury before whom the cause is tried should be of
opinion that any item of his account has been improperly rejected,
it is restored to his credit. On the trial of this cause in the
court below, it appears that the balance claimed was reduced by the
verdict of the jury to $44,994.57; it is presumed, by the
exhibition of vouchers under the 4th section of the act of 1797,
which had not been rendered to the accounting officers of the
Treasury.
It was also urged on the part of the plaintiff in error that the
amount offered in evidence is against him, as receiver of public
money, and that he had executed a bond with security, according to
law, for the faithful discharge of his duties as such, and that
therefore the account was merged
Page 22 U. S. 656
in the sealed instrument, on which alone the action can be
sustained. It may be admitted that a security under seal
extinguishes a simple contract debt, but in the case under
consideration, the account and the bond are distinct from each
other. The official bond is not given for the balance due; it is a
collateral security for the faithful performance of the official
duties of the officer, and was executed long before the existence
of the balance claimed. It may be asked how could a bond in a
penalty of $10,000 extinguish a simple contract debt of more than
$100,000? The balance claimed could not be recovered by a suit on
the bond. In all similar cases between the United States and its
debtors, it is usual to institute a suit for the recovery of the
balance struck on settlement of the account, and an action of debt
on the official bond, to recover the penalty of the sureties. It is
indispensably necessary in every instance where the debtor is
unable to pay.
The third and last objection made on behalf of the plaintiff in
error is on the ground that he is charged in the declaration in his
individual capacity, and the evidence offered is against him in his
public character, and further that the account charges stock and
money, and the claim is in money only; that on a count for money
had and received, evidence cannot be given that the defendant
received anything but money. It is a full answer to this objection
to observe 1. that the receiver is individually responsible for all
the money he received in his public capacity, and 2. that evidences
of the public debt are made by
Page 22 U. S. 657
law payable at their nominal value for lands sold by the United
States, and therefore stock is receivable as money at par. And it
appearing by the account offered in evidence that the far greater
part of the balance claimed is in money, it was proper and legal
evidence to support the declaration, and as the balance claimed was
reduced by the verdict of the jury, which is for money only, and
for less than the amount of cash claimed, the just inference is
that the stock balance was extinguished by the vouchers produced by
the defendant on the trial in the court below.
An objection was made on the part of the United States that the
bill of exceptions in this case was not taken at the trial, but
purports on the face of the record to have been taken and signed
after judgment rendered in the case. It is true that the bill of
exceptions states that the evidence was objected to at the trial,
but it is not said that any exception was then taken to the
decision of the court. So that in fact it might be true that the
objection was made and yet not insisted upon by way of exception.
But the more material consideration is that the bill of exceptions
itself appears on the record not to have been taken at all until
after judgment. It is a settled principle that no bill of
exceptions is valid which is not for matter excepted to at the
trial. We do not mean to say that it is necessary (and in point of
practice we know it to be otherwise) that the bill of exceptions
should be formally drawn and signed before the trial is at an end.
It will be sufficient if the exception be taken at the trial and
noted by the
Page 22 U. S. 658
court with the requisite certainty, and it may afterwards,
during the term, according to the rules of the court, be reduced to
form and signed by the judge, and so, in fact, is the general
practice. But in all such cases, the bill of exceptions is signed
nunc pro tunc, and it purports on its face to be the same,
as if actually reduced to form, and signed, pending the trial. And
it would be a fatal error if it were to appear otherwise, for the
original authority under which bills of exceptions are allowed has
always been considered to be restricted to matters of exception
taken pending the trial and ascertained before the verdict.
Judgment affirmed, with costs.