A Treasury transcript, produced in evidence by the United States
in an action on a bond for the performance of a contract for the
supply of rations to the troops of the United States, contained
items of charge which were not objected to by the defendant. The
defendant objected to the following items as not proved by the
transcript: "February 19, 1818, for warrant 1680, favor of Richard
Smith, dated 27 December, 1817, and 11 February, 1818,
$20,000."
And on 11 April of the same year, another charge was made "for
warrant No. 1904 for the payment of his two drafts, favor of
Alexander McCormick dated 11 and 17 of March, 1818, for $10,000."
And on 14 May of the same year, a charge was made "for warrant No.
2038, being in part for a bill of exchange in favor of Richard
Smith for $20,832.78." And one other warrant was charged June 22
"for a bill of exchange in favor of Richard Smith dated June
22,1810, $4,000, and also a warrant to Richard Smith, per order,
for eight thousand, dollars." These items, the circuit court
instructed the jury, were not sufficiently proved by being charged
in the account and certified under the act of Congress.
By the court:
"The officers of the Treasury may well certify facts which come
under their official notice, but they cannot certify those which do
not come within their own knowledge. The execution of bills of
exchange and orders for money on the Treasury, though they may be
connected with the settlement of an account, cannot be officially
known to the accounting officers. In such cases, however, provision
has been made by law by which such instruments are made evidence
without proof of the hand writing of the drawer. The act of
Congress of 3 March, 1797, makes all copies of papers relating to
the settlement of accounts at the Treasury, properly certified,
when produced in court annexed to the transcript, of equal validity
with the originals. Under this provision, had copies of the bills
of exchange and orders on which these items were paid to Smith and
McCormick been duly certified and annexed to the transcript, the
same effect must have been given to them by the circuit court as if
the original"
had been produced and proved. And every transcript of accounts
from the Treasury which contains items of payments made to others
on the authority of the person charged should have annexed to it a
duly certified copy of the instrument which authorized such
payments. And so in every case where the government endeavors by
suit to hold an individual liable for acts of his agent. The agency
on which the act of the government was founded, should be made
to appear by a duly certified copy of the power. The defendant
would be at liberty to impeach the evidence thus certified, and
under peculiar circumstances of alleged fraud, a court might
require the production of the original instrument.
Page 33 U. S. 376
This, however, would depend *upon the exercise of the discretion
of the court, and could only be enforced by a continuance of the
cause until the original should be produced.
The following item in the Treasury transcript was not admissible
in evidence.
"To accounts transferred from the books of the Second Auditor
for this sum standing to his debit under said contract on the books
of the Second Auditor transferred to his debit on those of this
officer, $45,000."
The act of Congress, in making a "transcript from the books and
proceeding of the Treasury" evidence, does not mean the statement
of an account in gross, but a statement of the items, both of the
debits and credits, as they were acted upon by the accounting
officers of the department. On the trial, the defendant shall be
allowed no credit on vouchers, which have not been rejected by the
Treasury officers, unless it was not in his power to have produced
them, and how could a proper effect be given to this provision, if
the credits be charged in gross? The defendant is unquestionably
entitled to a detailed statement of the items which compose his
account.
The defendant, in an action by the United States where a
Treasury transcript is produced in evidence by the plaintiffs, is
entitled to the credits given to him in the account, and in
claiming those credits, he does not waive any objection to the
items on the debit side of the account. He is unquestionably
entitled to the evidence of the decision of the Treasury officers
upon his vouchers, without reference to the charges made against
him. And he may avail himself of that decision without in any
degree restricting his right to object to any improper charge. The
credits were allowed the defendant on the vouchers alone, and
without reference to the particular items of demand which the
government might have against him. And the debits as well as the
credits must be established on distinct and legal evidence.
The defendant is entitled to a certified statement of his
credits as allowed by the accounting officers, and he has a right
to claim the full benefit of them in a suit by the government, and
under no circumstances has the government a right to withdraw
credits which have been fairly allowed.
The law has prescribed the mode by which Treasury accounts shall
be made evidence, and while individual may claim the benefit of
this rule, the government can set up no exemption from its
operation. In the performance of their official duty, the Treasury
officers act under the authority of law; their acts are public, and
affect the rights of individuals as well as those of the
government. In the adjustment of an account, they sometimes act
judicially, and their acts are all recorded on the books and files
of the Treasury Department. So far as they act strictly within the
rules prescribed for the exercise of their powers, their decisions
are, in effect, final, for if an appeal be made, they will receive
judicial sanction. Accounts amounting to many millions annually
come under the action of these officers. It is therefore of great
importance to the public and to individuals that the rules by which
they exercise their powers, should be fixed and known.
In every Treasury account on which suit is brought, the law
requires the credits to be stated, as well as the debits. These
credits the officers of the government cannot properly either
suppress or withhold. They are made evidence in the case, and were
designed by the law for the benefit of the defendant.
Page 33 U. S. 377
In April 1821, the plaintiffs instituted an action of debt
against Benjamin G. Orr on a bond, joint and several, executed by
Benjamin G. Orr, Alexander McCormick, and William O'Neale to the
United States on 21 November, 1816, in the penal sums of $60,000
with the condition annexed that
"If the said obligor, . . . shall in all things well, and truly
observe, perform, fulfill, accomplish, and keep all and singular
the covenants, conditions, and agreements, whatsoever, which on the
part and behalf of the said Benjamin G. Orr, his heirs, executors
or administrators, are or ought to be observed, performed,
fulfilled, accomplished, and kept, comprised or mentioned in
certain articles of agreement or contract bearing date 21 November,
1816, made between George Graham, acting Secretary of War, and the
said Benjamin G. Orr concerning the supply of rations to the troops
of the United States within the Mississippi territory, the State of
Louisiana, and their vicinities north of the Gulf of Mexico,
according to the true intent, meaning, and purport of the said
articles of agreement or contract."
The contract was dated on 21 November, 1821, was made by Orr
with the Acting Secretary for the Department of War, and
stipulated, that Orr, his heirs, &c.,
"shall supply and issue all the rations, to consist of the
articles hereinafter specified, that shall be required of him or
them for the use of the United States at all and every place or
places where troops are or may be stationed, marched, or recruited
within the limits of the Mississippi Territory, the State of
Louisiana, and their vicinities north of the Gulf of Mexico, thirty
days' notice being given of the post or place where rations may be
wanted, or the number of troops to be furnished on their march,
from 1 June, 1817, until 31 May, 1818, both days inclusive."
The defendant Orr having died after the institution of the suit,
it was proceeded in against Walter Jones, his administrator
de
bonis non, at May term 1829, who took defense in the action,
and after oyer of the bond and condition, and the contract, pleaded
performance, &c.
The plaintiffs replied that Orr did not perform the contract
Page 33 U. S. 378
entered into by him in that, although the United States advanced
and furnished him with large sums of money on account of the
contract, and although the accounts of the said Benjamin G. Orr in
relation to the articles of agreement aforesaid have been duly and
finally settled by the accounting officers of the government of the
United States, and upon the said settlement there was found to be
due to the United States, from the said Benjamin, the sum of
$3,654.46, of which the said Benjamin had due notice.
To this replication there was a rejoinder and issue, and on 31
December, 1831, the cause was tried and a verdict and judgment
rendered for the defendant.
The plaintiffs filed two bills of exception.
The first exception set forth the evidence, produced and relied
upon by the plaintiffs, to be an account stated by the accounting
officers of the Treasury against Orr under the contract referred to
in the bond, upon which the balance of $6,654.46 was claimed, and
which, according to that account, was due to the United States. The
plaintiffs produced no other evidence. The whole amount of debts in
the account was $146,078.24. The defendant admitted some charges in
the account for moneys paid to Orr by warrants of the Treasury
amounting to $28,500, but objected to the competency of the account
to charge him with any other item. The charges admitted were
"1817. June 9, for warrant No. 521, received by him on account
$10,000; Sept. 18, for part 953, do. $5,000; Oct. 6, for do. 1072,
do. $8,500; Aug. 1, for do. 2419, do. $5,000 -- $28,500."
Among the items objected to were the following:
"1818. Feb. 19, for warrant No. 1660, favor of Richard Smith,
dated 27 Dec., 1817, and 11 Feb., 1818 -- $20,000."
"1818. April 11, for warrant No. 1904, for the payment of his
two drafts, favor of Alexander McCormick, dated 11 and 17 March,
1818, for $5,000 each -- $10,000."
"1818. May 14, for warrant No. 2038, being in part of a bill of
exchange in favor of Richard Smith for $20,000 -- $12,832 78. "
Page 33 U. S. 379
"1818. June 22, for warrant No. 2210, for a bill of exchange in
favor of Richard Smith, dated 22 June, 1818 -- $4,000."
"1818. June 22, for warrant No. 2420, to Richard Smith, per
order -- $8,000."
"1818. June 22, to accounts transferred from the books of the
Second Auditor for this sum, standing to his debit under said
contract, on the books of the Second Auditor, transferred to his
debit on those of this office -- $45,000."
The circuit court instructed the jury that the accounts were not
competent to charge the defendant with the items objected to, and
the plaintiffs excepted to this instruction.
Second exception. The defendant then insisted that he was
entitled to credit for the several sums credited to Orr in the
account for supplies in execution of the contract and prayed the
court so to instruct the jury, to which the plaintiffs objected
unless jury were also instructed that the defendant could not rely
on the account and claim the credits therein without making the
items of charge therein contained also evidence before the jury.
The court gave the instructions prayed for by the defendant without
adding the further instruction prayed for by plaintiffs, to which
instruction and refusal the plaintiffs excepted.
The plaintiffs prosecuted this writ of error.
Page 33 U. S. 380
MR. JUSTICE McLEAN delivered the opinion of the Court.
The action was commenced against B. G. Orr, in his lifetime, to
recover from him a sum of money which remained in his hands as a
balance of moneys that had been advanced to him on an army
contract. Issue being joined, the cause was submitted to a jury;
and the exceptions taken by the plaintiffs, to the ruling of the
court on the trial, present the points for consideration.
"The attorney for the United States produced and read to the
jury the contract or articles of agreement between George Graham,
acting Secretary of War, &c., and the said B. G. Orr, dated 21
November, 1816, and the bond of said Orr and his sureties, A.
McCormick and W. O'Neale, of the same date, with the condition
thereof, being the same contract and bond above set out, &c.
The attorney of the United States then produced and read to the
jury the account stated by the accounting officers of the Treasury
against the said Orr, and claimed to recover in this action the
balance of $3,654.46 in the said account stated."
To certain items contained in this account the defendant's
counsel objected, but no objections were made to four items charged
for Treasury warrants issued to Orr amounting to the sum of
$28,500.
The first charge excepted to was made as follows:
Page 33 U. S. 381
"February 19, 1818, for warrant 1680, favor of Richard Smith,
dated 27 December, 1817, and 11 February, 1818, $20,000." And on 11
April of the same year, another charge was made, "for warrant No.
1904, for the payment of his two drafts, favor of Alexander
McCormick, dated 11 and 17 March, 1818, for $10,000." And on 14 May
of the same year, a charge was made "for warrant No. 2038, being in
part for a bill exchange in favor of Richard Smith, for $20,000 --
$12.832.78." And one other warrant was charged June 22 "for a bill
of exchange in favor of Richard Smith, dated June 22, 1810, $4,000,
and also a warrant to Richard Smith, per order, for $8,000."
These items the court instructed the jury, were not sufficiently
proved by being charged in the account and certified under the act
of Congress.
This instruction, the Attorney General insists, was erroneous,
and that these items should have been admitted as proved on the
same principle as the four items to which no objection was made.
That if the government shall be required to produce the authority
on which the warrants were issued to Richard Smith and Alexander
McCormick, on the same principle, the original warrants issued in
the name of Orr, and on which his receipts for the moneys are
endorsed, should be proved. That it is as likely that someone may
have fraudulently obtained these warrants from the Treasury by
personating Orr as that the bills of exchange or orders on which
the warrants were issued to his agents were forgeries.
The officers of the Treasury may well certify facts which come
under their official notice, but they cannot certify that which
does not come within their own knowledge.
In the case of
United States v.
Buford, 3 Pet. 12, the Court said that
"An account stated at the Treasury Department which does not
arise in the ordinary mode of doing business in that department can
derive no additional validity from being certified under the act of
Congress. Such a statement can only be regarded as establishing
items for moneys disbursed through the ordinary channels of the
department where the transactions are shown by its books. "
Page 33 U. S. 382
The issuing of the warrants to Orr was an official act, "in the
ordinary mode of doing business in the department," and the fact is
proved by being certified as the act of Congress requires.
But the execution of bills of exchange and orders for money on
the Treasury, though they may be "connected with the settlement of
an account," cannot by officially known to the accounting officers.
In such cases, however, provision has been made by law by which
such instruments are made evidence, without proof of the hand
writing of the drawer.
In the second section of the Act of 3 March, 1797, it is
provided that
"All copies of bonds, contracts, or other papers relating to or
connected with the settlement of any account between the United
States and an individual, when certified by the register to be true
copies of the original on file and authenticated under the seal of
the department, may be annexed to the transcripts and shall have
equal validity and be entitled to the same degree of credit which
would be due to the original papers if produced and authenticated
in court."
Under this provision, had copies of the bills of exchange and
orders on which the above items were paid to Smith and McCormick
been duly certified and annexed to the transcript, the same effect
must have been given to them by the circuit court as if the
originals had been produced and proved. And every transcript of
accounts from the Treasury which contains items of payments made to
others, on the authority of the person charged should have annexed
to it a duly certified copy of the instrument which authorized such
payments. And so in every case where the government endeavors by
suit to hold an individual liable for the acts of his agent the
agency on which the act of the government was founded, should be
made to appear by a duly certified copy of the power.
The defendant would be at liberty to impeach the evidence thus
certified, and, under peculiar circumstances of alleged fraud, a
court might require the production of the original instrument.
This, however, would depend upon the exercise of the discretion of
the court, and could only be enforced by a continuance of the cause
until the original should be produced.
The following item was also objected to by the defendant's
counsel.
"To accounts transferred from the books of the second
Page 33 U. S. 383
auditor for this sum, standing to his debit under said contract
on the books of the Second Auditor, transferred to his debit on
those of this office, $45,000."
This item was properly rejected by the circuit court. The act of
Congress, in making a "transcript from the books and proceedings of
the Treasury" evidence, does not mean the statement of an account
in gross, but a statement of the items, both of the debits and
credits, as they were acted upon by the accounting officers of the
department. On the trial, the defendant shall be allowed no credit
on vouchers which have not been rejected by the Treasury officers
unless it was not in his power to have produced them, and how could
a proper effect be given to this provision, if the credits be
charged in gross? The defendant is unquestionably entitled to a
detailed statement of the items which compose his account.
Several other items charged against Orr were rejected by the
circuit court, and which are embraced by the bill of exceptions,
but they present no point which has not been already
considered.
The second bill of exceptions was taken to the instruction of
the court that the defendant was entitled to the credits given to
him in the Treasury account, and that in claiming these credits, he
did not waive any objection to the items on the debit side of the
account.
On the part of the government, it is contended that this
instruction is erroneous. That if the defendant relied for his
defense on any part of the Treasury account, he was bound to take
the whole account as stated, and 1 Wash.C.C. 344 and 3 Wash.C.C. 28
are referred to as sustaining this doctrine.
There can be no doubt that if the defendant be called upon to
render an account on which the plaintiff seeks to charge him, the
account cannot be garbled, but must be taken entire. And so where a
plaintiff renders an account at the instance of the defendant, to
be used in his defense, the account thus rendered is considered as
the admission of the party, and its parts cannot be separated.
But the Treasury account does not seem to rest upon the same
principle.
The accounting officers of the Treasury act upon the
accounts
Page 33 U. S. 384
and give to the credits as entered their official sanction. The
vouchers of an individual are all submitted to these officers, and
their decision has always been considered as conclusive upon the
government, but not so as against the individual. The law expressly
provides that rejected items may be allowed by the court. The law
makes the Treasury account, when properly certified, evidence, and
every item correctly charged in the account is
prima facie
established by the transcript. If, as in the present suit, certain
items are charged to an individual, which the Treasury officers
cannot know officially to be correct, and no other evidence in
support of them be adduced, they should be rejected, as was done by
the circuit court in this cause; but no such objection can be made
to the credits entered on the account against Orr. They are all
founded upon supplies which he furnished to the troops of the
United States under his contract. These credits have been all
examined and allowed by the accounting officers of the Treasury
Department, and all the vouchers on which this action of the
Treasury took place remain in that department.
The defendant is entitled to a certified statement of his
credits as allowed by the accounting officers, and he has a right
to claim the full benefit of them in a suit by the government, and
under no circumstances has the government a right to withdraw
credits which have been fairly allowed.
In the present case, the government, to sustain its action
against the defendant, gives in evidence a Treasury account duly
certified. This account, so far as it represents the official
action of the Treasury, is made evidence by law, but it contains
several items of debits which, unsupported by other evidence, are
not proved by the transcript. Now must these items be admitted by
the defendant if he claim the credits which have been allowed him
in the same account? The credits have been duly examined and
sanctioned, and the law makes them evidence for the defendant as
well as the plaintiffs, but the items objected to, though charged
in the same account, are not thereby made evidence, and without
further proof they must be rejected by the court. Would not the
rule be as novel as unjust which should require the defendant, in a
case like this, to admit debits against him, unsupported by proof,
if he claims credits in the same account, properly entered and
legally proved.
Page 33 U. S. 385
The law has prescribed the mode by which Treasury accounts shall
be made evidence, and whilst an individual may claim the benefit of
this rule, the government can set up no exemption from its
operation. In the performance of their official duty, the Treasury
officers act under the authority of law; their acts are public, and
affect the rights of individuals as well as those of the
government. In the adjustment of an account, they sometimes act
judicially, and their acts are all recorded on the books and files
of the Treasury Department. So far as they act strictly within the
rules prescribed for the exercise of their powers, their decisions
are in effect final, for if an appeal be made, they will receive
judicial sanction. Accounts amounting to many millions annually
come under the action of these officers. It is therefore of great
importance to the public and to individuals that the rules by which
they exercise their powers should be fixed and known.
Could anything be more unjust than for the government to
withhold from an individual credits which its own officers had
decided and certified to be just and legal, until he should admit
certain charges made against him, but which are unsupported by
evidence? On what must the defendant rely to establish his credits
in this case? The transcript of the Treasury? His vouchers are in
the Treasury, and having been allowed, must remain on file, and he
can only ask the accounting officers for the evidence of this
allowance. Had his vouchers been rejected, he might have obtained
them from the department and submitted them to the jury which tried
his cause in the circuit court. And may the evidence of this
allowance be withheld unless the defendant shall admit certain
items as debits which are unsupported by proof? But still more than
this, when the evidence is before the jury, introduced by the
plaintiffs and relied on by them, may they withdraw the credit side
of the account, because the defendant will not consent to be
charged with certain items illegally.
The defendant is unquestionably entitled to the evidence of the
decision of the Treasury officers upon his vouchers, without
reference to the charges made against him. And in this suit he may
avail himself of that decision without in any degree restricting
his right to object against any improper charges. The credits were
allowed to the defendant on the vouchers alone,
Page 33 U. S. 386
and without reference to the particular items of demand which
the government might have against him. And the debits as well as
the credits must be established on distinct and legal evidence.
It is clear that the government had no right to garble the
Treasury statement which was offered in evidence in the circuit
court, nor to impose any condition on the defendant in claiming the
credits which had been allowed him. In every Treasury account on
which suit is brought, the law requires the credits to be stated as
well as the debits. These credits the officers of the government
cannot properly either suppress or withhold. They are made evidence
in the case, and were designed by the law for the benefit of the
defendant.
In neither of the bills of exception does it appear to this
Court that the circuit court erred in their instructions to the
jury; their judgment must therefore be
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court that the judgment of the said circuit court in this
cause be and the same is hereby affirmed.
