Although a
venire de novo is frequently awarded by a
court of error upon a bill of exceptions, to enable parties to
amend, and though amendments may, in the sound discretion of the
court, upon a new trial, be permitted, the
venire de novo
is in no instance anything more than an order for a new trial in a
cause in which the verdict or judgment is erroneous in matter of
law, and is never "equivalent to a new suit." No statute of the
United States alters the law in this regard.
It has never been the practice of the circuit courts, in suits
under the law of 3 March, 1797, to deny to defendants a claim for
credits against the United States because they had not been
presented and disallowed before the commencement of the suit. The
practice to allow a claim for credits after the suit has been
commenced is sustained by the spirit and letter of the third
and
fourth sections of the statute. When a defendant seeks to obtain
a continuance to prevent judgment from being granted to the United
States at the return term of the cause, he is required by the third
section to make oath or affirmation that he is equitably entitled
to credits which had been,
previous to the commencement of the
suit, submitted to the consideration of the accounting
officers of the Treasury Department and rejected, but the fourth
section, which directs that 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 and by them disallowed, the
words "
previous to the commencement of the suit" are
omitted, and further provision is made for a claim for credits at
the time of trial, when it shall be proved to the satisfaction of
the court that the defendant is to possession of vouchers not
before in his power to procure, and that he was prevented from
exhibiting a claim for such credits at the Treasury by absence from
the United States or some unavoidable accident. Thus showing it to
be an inflexible requirement of the statute that the defendant
shall have had his claim for credits disallowed before he can
prevent the United States from getting judgment at the return term
by a continuance of the cause, and that he may have them submitted
to a jury at the trial if they have been refused by the accounting
officers of the Treasury after the suit has been instituted, or if
he can bring himself within either of the liberal provisions of the
fourth section of the Act of 3 March, 1797.
If a navy agent, without a receipt from a purser, upon a
requisition for money volunteers to pay demands which it is the
purser's duty to pay, or shall pay the orders of a purser and shall
permit the receipts for the sums paid by him to get into the
purser's possession, by whom they are exhibited at the Treasury and
allowed in the final settlement of his account without the purser's
having given credit to the navy agent or to the government for the
amount, it assumes the character of a private transaction between
the purser and the navy agent, or becomes a debt due from the
purser, as an individual, to the navy agent as a private person,
and the latter cannot claim the amount at the Treasury as an
allowance in the settlement of his account, nor as a legal and
equitable credit in a suit against him by the United States.
Page 35 U. S. 126
The statute prevents delinquent officers from delaying the
United States by frivolous pretenses from obtaining judgment at the
return term, gives to the defendant the full benefit of having
every credit to which he may suppose himself equitably entitled and
which has been disallowed passed upon by a jury, and guards the
district attorney from surprise by informing him, through the
Treasury Department, before the time of trial, of the credits
which
have been claimed and the reasons for the rejection of them. All
the provisions of this statute regulating the institution of suits
and the recovery by judgment of unpaid balances from delinquent
officers are as much a part of their bonds as if they were recited
in them, and officers and their securities are, in contemplation of
law, apprised of those provisions when their bonds are
executed.
This case was before the Court at January term, 1832, on a writ
of error to the District Court of Louisiana prosecuted by
Nathaniel Cox, Nathaniel and James Dick, plaintiffs in error v.
the United States, 31 U. S. 6 Pet.
172. Nathaniel Cox, and John Dick, the father of Nathaniel and
James Dick, were the sureties of Joseph H. Hawkins in his official
bond to the United States as navy agent of the United States at New
Orleans. In the district court, a judgment was given in favor of
the United States, and the same was reversed for an informality in
entering the same.
On the former writ of error, certain questions were raised as to
the admission of evidence offered in the district court on the part
of the defendants, and rejected by the court. This Court sustained
the decision of the district judge,
31 U. S. 6 Pet.
200.
The judgment of the District Court of Louisiana having been
reversed, the cause went back to that court on the following
mandate:
"Whereas lately in the District Court of the United States for
the Eastern District of Louisiana, before you, in a cause wherein
the United States of America were plaintiff, and the heirs and
representatives of J. H. Hawkins, the heirs and representatives of
John Dick and Nathaniel Cox, were defendants, the judgment of the
said district court was in the following words,
viz.,"
" The court having maturely considered the motion in arrest of
judgment, now orders that judgment be entered up as of the
Page 35 U. S. 127
15th instant against the estate of John Dick and Nathaniel Cox,
jointly and severally, for the sum of $20,000, with six percentum
interest from 2 January, 1830, until paid, and costs of suit, and
that judgment be entered up against Nathaniel Dick and James Dick,
for the sum of $10,000 each, with six percentum interest from 2
January, 1830, until paid, and the costs."
"As by the inspection of the transcript of the record of the
said district court, which was brought into the Supreme Court of
the United States by virtue of a writ of error, agreeably to the
act of Congress in such case made and provided, fully and at large
appears."
"And whereas in the present term of January in the year of our
Lord one thousand eight hundred and thirty-two, the said cause came
on to be heard before the said Supreme Court on the said transcript
of the record and was argued by counsel, on consideration whereof
it is adjudged and ordered by this Court that the judgment of the
said district court in this cause be and the same is hereby
reversed, and that this cause be and the same is hereby remanded to
the said district court with direction to award a
venire facias
de novo."
"You therefore are hereby commanded that such further
proceedings be had in said cause as according to right, justice,
and the laws of the United States ought to be had, the said writ of
error notwithstanding."
Further proceedings took place in the cause in the district
court, which are stated at large in the opinion of the Court. A
verdict was rendered against the United States, and exceptions
being taken to the charge of the court, the United States
prosecuted this writ of error.
Page 35 U. S. 129
MR. JUSTICE WAYNE delivered the opinion of the Court.
On 19 October, 1825, the United States instituted a suit in the
District Court of the United States for the Eastern District of
Louisiana, according to the practice of that state, upon a bond of
Joseph H. Hawkins, as principal, and Nathaniel Cox and John Dick,
as sureties in the penalty of twenty thousand dollars, with the
condition
"that if Joseph H. Hawkins shall regularly account, when thereto
required, for all public moneys received by him, from time to time
and for all public property committed to his care, with such person
or persons, officer or officers of the government of the United
States as shall be duly authorized to settle and adjust his
accounts, and shall, moreover, pay over, as may be directed, any
sum or sums that may be found due to the United States upon any
such settlement or settlements, and shall faithfully discharge in
every respect the trust reposed in him, then the said obligation to
be void and of no effect, otherwise to remain in full force and
virtue,"
and assigned as a breach of the condition of the bond that the
said Hawkins did not in his lifetime regularly account for all the
public moneys received by him, &c., but did at his death remain
indebted to the United States in the sum of fifteen thousand five
hundred and fifty-three dollars and eighteen cents, for moneys
received by him as navy agent from the United States since the date
of the bond. Hawkins being dead and without legal representatives,
and Dick, one of his securities, being also dead at the time of the
institution of the suit, but having legal representatives, the
latter with Cox, the other surety of Hawkins, appeared according to
the practice of Louisiana and put in separate answers and
defenses.
A verdict was found for the United States, and judgment entered
up against the estate of John Dick and Nathaniel
Page 35 U. S. 130
Cox, jointly and severally, for the sum of twenty thousand
dollars, and also against Nathaniel Dick and James Dick, the
representatives of John Dick, for the sum of ten thousand dollars
each. The defendants then paid into court the sum of twelve
thousand six hundred and eighty-two dollars and forty-six cents on
account of the judgment, and sued out separate writs of error to
this Court, and the judgment was reversed, as may be seen by the
report of the case in
31 U. S. 6 Pet.
172, with directions to award a
venire facias de novo.
Upon the return of the mandate, the defendant Cox petitioned the
district court to be allowed to file a supplemental answer, in
which he pleads as a setoff debts alleged to be due to him by the
United States, one in his own right of $1,320 27, balance of
account in his capacity of United States navy agent, settled at the
Treasury Department, as appears by a certified copy filed in
another suit in said court, and two other sums alleged to be due to
him by the United States for payments made by him, in his capacity
of navy agent, on account of the United States, upon the checks and
vouchers of one Joseph B. Wilkinson, then a purser of the United
States on the Orleans Station, which he states had been presented
and disallowed at the Treasury Department. Against the defendant's
application to file the supplemental answer, the district attorney
of the United States objected "that the sums placed as setoff were
foreign to the matters in controversy between the parties," and
secondly
"That the sums cannot be admitted as a credit at the trial of
the cause under the third and fourth sections of the Act of
Congress of 3 March, 1797, inasmuch as the same were not, previous
to the commencement of this suit, submitted to the accounting
officers of the Treasury and rejected."
The objections of the district attorney were overruled by the
court; leave was given to file the answer, the court expressing its
opinion
"that the mandate of the Supreme Court ordering a new trial
authorized the plea to be filed, and that the defendant might
equitably be allowed, under the said act of Congress, to establish
by proof the sums claimed to be due by way of credit."
Distinguishing between the judicial discretion of the court to
permit a supplemental answer to be filed, or to a defendant upon a
venire facias de novo to amend, to enable him to avail
himself
Page 35 U. S. 131
of a proper defense, which he had not pleaded on the first
trial, we will here merely remark that the objections of the
district attorney should have prevailed against the allowance of it
in this instance for reasons which will be found to apply when we
shall discuss the exceptions taken by the district attorney to the
judgment, by which this cause has again been brought to the Supreme
Court by writ of error.
Upon the supplemental answer, however, the cause was carried to
trial. The district attorney objected to the introduction of
certain bills, orders, or documents offered by the defendant as
evidence to sustain the setoff in his supplemental answer, on the
ground that they were not
"sustained by bills or receipts showing the same were paid to
persons in public service, or for furnishing materials or articles
for public service, or that they had been approved by the
commanding naval officer at New Orleans."
"That it does not appear that the documents, bills, or orders
had been presented to the proper accounting officers and disallowed
previous to the commencement of this suit."
"That it appeared from the document that the sums mentioned in
it and claimed as a setoff by Cox, the defendant, had been already
allowed to purser Wilkinson."
The court overruled the objections, permitted the bill and
vouchers to be read to the jury, expressing its opinion that they
were
"competent testimony to be weighed by the jury, and that the
mandate of the Supreme Court requiring the cause to be sent back
with directions to issue a
venire de novo might properly
be regarded as equivalent to a new suit within the statute."
Without going into the doctrine in what cases or for what causes
a
venire de novo will be directed, it is sufficient for us
to say, though it is frequently awarded by a court of error upon a
bill of exceptions to enable parties to amend, and though
amendments may, in the sound discretion of the court, upon a new
trial, be permitted, the
venire de novo is in no instance
anything more than an order for a new trial in a cause in which the
verdict or judgment is erroneous in matter of law, and is never
"equivalent to a new suit." No statute of the United States alters
the law in this regard.
In regard to so much of the exception which objects to the
Page 35 U. S. 132
introduction of the bills, orders, or documents claimed as
credits in the defendants' supplemental answer -- because they had
not been presented to the proper accounting officers and disallowed
previous to the commencement of the suit -- we remark it has never
been the practice of the circuit courts, in suits under the law of
3 March, 1797, to deny to defendants a claim for credits against
the United States because they had not been presented and
disallowed before the commencement of the suit. The practice to
allow a claim for credits after the suit has been commenced is
sustained by the spirit and letter of the third and fourth sections
of the statute. When a defendant seeks to obtain a continuance to
prevent judgment from being granted to the United States at the
return term of the cause, he is required by the third section to
make oath or affirmation that he is equitably entitled to credits
which had been, previous to the commencement of the suit, submitted
to the consideration of the accounting officers of the Treasury
Department and rejected, but the fourth section, which directs that
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 and by them disallowed, the words
"previous to the
commencement of the suit" are omitted, and further provision
is made for a claim for credits at the time of trial when it shall
be proved to the satisfaction of the court that the defendant is in
possession of vouchers not before in his power to procure, and that
he was prevented from exhibiting a claim for such credits at the
Treasury by absence from the United States or some unavoidable
accident, thus showing it to be an inflexible requirement of the
statute that the defendant shall have had his claim for credits
disallowed before he can prevent the United States from getting
judgment at the return term by a continuance of the cause, and that
he may have them submitted to a jury at the trial if they have been
refused by the accounting officers of the Treasury after the suit
has been instituted or if he can bring himself within either of the
liberal provisions of the fourth section of the Act of 3 March,
1797.
Such was the construction given by this Court to the third and
fourth sections of that act in the case of
United
States v. Giles, 9 Cranch 212, and MR. JUSTICE
STORY, giving
Page 35 U. S. 133
the opinion of the Court in the case of
United
States v. Wilkins, 6 Wheat. 135, says the fourth
section "prohibits no claim for any credits which have been
disallowed at the Treasury from being given in evidence by the
defendant at the time of trial." The statute prevents delinquent
officers from delaying the United States by frivolous pretenses
from obtaining judgment at the return term, gives to the defendant
the full benefit of having every credit to which he may suppose
himself equitably entitled and which has been disallowed, passed
upon by a jury, and guards the district attorney from surprise by
informing him, through the Treasury Department before the time of
trial, of the credits which have been claimed and the reasons for
the rejection of them. All the provisions of this statute
regulating the institution of suits and the recovery by judgment of
unpaid balances from delinquent officers are as much a part of
their bonds as if they were recited in them, and officers and their
securities are in contemplation of law apprised of those provisions
when their bonds are executed. Whilst our conclusion, therefore, is
that a defendant is not prevented from claiming the benefit of
credits which may not have been disallowed before the commencement
of the suit, we do not mean to say that the credits claimed by the
defendant in his supplemental answer were proper evidence in this
cause.
We will now consider the objections to the credits claimed by
the defendant Cox for payments said to have been made by him on the
bills and orders of purser Wilkinson, which were allowed to be
given as evidence to the jury, the court giving its opinion "that
although the credits had been allowed to Wilkinson, it was no
reason they should not be allowed to Cox, if the jury thought they
were equitably due." This misdirection of the court arose from its
misunderstanding the official relations between pursers and navy
agents and their separate accountability to the government. Both
are disbursing officers, whose accounts are separately kept at the
Treasury Department, it being the duty of the navy agent, when he
has funds of the government on hand, to comply with the
requisitions of the pursers for money, the latter being sanctioned
by the naval officer commanding the station. The purser's receipt
to the navy agent upon such
Page 35 U. S. 134
requisition is his voucher for a credit at the Treasury, and the
sum received by the purser is disbursed by him in paying officers
and seamen and for such supplies for the service as his commanding
officer may sanction. The receipts taken by the purser are his
vouchers for credits against the sum received by him from the navy
agent, but before the purser's accounts can be settled at the
Treasury, the original receipts are deposited by him in that
department. It follows, then, that credits which have been allowed
to the purser cannot be afterwards claimed by the navy agent
without giving to him a credit twice for the same sum -- the amount
of the receipts in detail and the purser's requisition upon him in
gross. Nor can the navy agent ever make a claim for such credits
without having first violated his instructions for the disbursement
of government funds.
If a navy agent, without a receipt from a purser upon a
requisition for money, volunteers to pay demands which it is the
purser's duty to pay, or shall pay the orders of a purser and shall
permit the receipts for the sums paid by him to get into the
purser's possession, by whom they are exhibited at the Treasury and
allowed in the final settlement of his account, without the
purser's having given credit to the navy agent or to the government
for the amount, it assumes the character of a private transaction
between the purser and the navy agent, or becomes a debt due from
the purser, as an individual, to the navy agent as a private
person, and the latter cannot claim the amount at the Treasury as
an allowance in the settlement of his account, nor as a legal or
equitable credit in a suit against him by the United States. Such
is the attitude of the defendant Cox in the claim which he makes
for credits on account of the orders of purser Wilkinson, and such
would have been the relations between him, purser Wilkinson, and
the government if he had sustained by proof the allegations in his
supplemental answer that he had paid, in his character of navy
agent and for the use of the United States, the bills and orders of
purser Wilkinson.
But there is no such proof. The document which the court
permitted to be given as evidence, and the only evidence upon which
the defendant relies, shows that the credits claimed by him had
been allowed to purser Wilkinson on the settlement of his account,
and it does not
Page 35 U. S. 135
show any connection between them entitling the defendant upon
any equitable ground to credit for any one of the items in that
account. If he has any claim upon the conscience of purser
Wilkinson, it must rest upon both having disregarded those
regulations for the disbursement of public funds, which, when
observed, are a protection to each, and which only preserve that
responsibility between the officer and the government required by
the public interest. In such a case, the defendant must look to
purser Wilkinson. The government is not to be involved in the
consequences to either resulting from an irregular disbursement of
its funds. If, as may have been the case in this instance, purser
Wilkinson, to oblige a discharged mariner or one to whom his pay
was due when there were no funds on hand to pay him, assumed, by
his due bill or order, the amount due to enable the mariner to have
it cashed by anyone who would make him the advance, having taken a
receipt officially for the sum due by the government, and the navy
agent afterwards took up the purser's due bill; he did it for the
honor of the purser, and must look to him for repayment. He has not
the purser's receipt for the money, but his due bill, which, if
even signed by the commanding officer of the station and bearing
upon its face a connection with the original transaction between
the seaman and the service, would not give to the navy agent a
legal or equitable claim for a credit at the Treasury, because the
purser cannot be debited there for any money for which he has not
given his receipt in due form.
The judgment of the court below is
Reversed, and the cause sent back with directions to issue a
venire de novo.
It is admitted by the Attorney General that the defendant may by
credited with the sum of thirteen hundred and twenty dollars and
seventy-seven cents, that sum being really due to him from the
Treasury, the balance claimed by the government being fifteen
hundred and fifty dollars and forty-five cents.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel, on consideration
whereof it is ordered and adjudged by this Court that the
Page 35 U. S. 136
judgment of the said district court in this cause be and the
same is hereby reversed, and that this cause be and the same is
hereby remanded to the said district court with directions to award
a
venire facias de novo.
