The United States instituted an action on a Treasury transcript
of the accounts of the defendant, who had been a clerk in the
Treasury Department, and as such, and as agent under the authority
of the Secretary of the Treasury, had disbursed public moneys under
several heads of appropriation -- some specific and temporary,
others of a more permanent and general character. On the night of
30 March, 1833; the Treasury building was consumed by fire, which
destroyed all his books, papers and vouchers relating to the
disbursements made by him. During the period in which the defendant
had performed the duties of agent, he had settled his accounts with
punctuality and to the satisfaction of the accounting officers. All
suspicion of fraudulent misapplication of the money was disclaimed
by the counsel of the United States in the argument of the cause,
and the question before the court was whether the defendant had
entitled himself to relief in a court of justice, or must be turned
over to legislative aid. Upon the questions of evidence presented
in the cause, the court said
"This, then, presents a case, where all the books, papers and
vouchers, of the defendant relating to his disbursements and agency
have been destroyed by fire without any fault of his, and is of
necessity open to the admission of secondary evidence. And under
the general rule of evidence, he might be required to produce the
best evidence which the nature of the case, under the
circumstances, would admit. This rule, however, does not require of
a party the production of the strongest possible evidence, but must
be governed in a great measure by the circumstances of the case,
and must have a bearing upon the matter in controversy, and must
not be such as to leave it open to the suspicion or presumption
that anything left behind and within the power of the party would,
if produced, make against him."
Suppose a debtor should put into the hands of an agent a sum of
money for the payment of specified demands against him, and the
amount limited to such demands, and to be paid in small sums to a
numerous class of creditors scattered over various and distant
parts of the country, and it should be made to appear that he had
disbursed all the money thus put into his hands, but that the
vouchers for such payments had been destroyed by fire without any
fault of his, and he could not ascertain the names of the creditors
to whom payment had been made, but that no claim had been presented
to his principal by any one of the creditors to whom payment was to
be made by the agent after the lapse of three years, and all this
accompanied by proof that he had faithfully discharged the duties
of a like agency for several years and regularly accounted for his
disbursements; would it not afford reasonable grounds to conclude
that he had disbursed all the moneys placed in his hands by his
principal for the purposes for which he received it, and protect
him against a suit for any balance?
Page 37 U. S. 2
It appeared that the defendant offered to read in evidence
certain passages from a public document mentioned in the bill of
exceptions. The plaintiffs' counsel consented to its being read as
the defendant's evidence. And after the same was read, the
plaintiffs' counsel requested the court to instruct the jury that
the conversation of the defendant with Mr. Dickens and Mr. McLean
read from the executive document was not evidence to the jury of
the
facts stated in such conversation, which the court
refused to give. The Court said
"The entire document referred to is not set out in the bill of
exceptions, and from what is stated, no conversation of the
character objected to appears. But the evidence was admitted by
consent. The plaintiffs were entitled to have the whole document
read, and it was all in evidence before the court and jury. But the
objection, on the ground that some of the facts stated were only
hearsay evidence, fails. The document, so far as it appears on the
bill of exceptions, contains no such conversation. This instruction
was therefore properly refused."
The United States instituted two actions of assumpsit against
the defendant to recover the balances stated to be due to the
United States on transcripts regularly certified by the Treasury
Department. The first account was with the defendant, as "agent for
paying the contingent expenses of the office of the Secretary of
the Treasury," and charges a balance due to the United States, and
those warrants drawn by the Secretary of the Treasury in favor of
the defendant, amounting, together, to four thousand dollars. It
credits a payment of two hundred and forty-one dollars and
fifty-eight cents, paid on 22 July, 1833, leaving a balance due to
the United States, on 24 November, 1833, of three thousand seven
hundred and seventy-six
Page 37 U. S. 3
dollars and fifty-eight cents. The other account is against the
defendant as "superintendent of the southeast executive building,
in relation to the compensation of superintendent, and watchman of
said building," and after charging a warrant of four hundred and
twenty-five dollars and crediting one hundred and fourteen dollars
and ninety-seven cents, paid July 22d 1833, claims a balance of
three hundred and ten dollars and three cents. The whole sum
claimed to be due to the United States on the two transcripts was
four thousand and eighty-six dollars and fifty-one cents. In the
other action, the United States claimed seven thousand seven
hundred and sixty-nine dollars and twenty-five cents. This account
is for a Treasury warrant for two thousand dollars, and for five
thousand seven hundred and sixty-nine dollars and twenty-five cents
for balances due by the defendant as "superintendent of the
southeast executive building" in relation to contingent expenses of
the said building, to alterations and improvements thereof, and to
enclosing the grounds attached thereto, and also as "agent for
expenditures in relation to insolvent debtors" and in relation to
manufactures.
The defendant pleaded
nonassumpsit to both actions, and
the cases were tried together in the circuit court; the jury found
verdicts for the defendant.
Three bills of exception, entirely similar, were taken in each
case, by the plaintiffs, and judgment being given for the
defendant, the plaintiffs prosecuted this writ of error. The
material facts of the case, in the bills of exception, are stated
in the opinion of the Court.
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The action is founded upon a balance certified at the Treasury
against the defendant for eleven thousand eight hundred and
fifty-five dollars and eighty-six cents. A verdict was found by the
jury for the defendant, and upon the trial, several bills of
exception were taken to the instructions given by the court.
The main question in the case related to certain credits which
the defendant claimed to have allowed to him and which had been
rejected by the accounting officers of the Treasury.
Page 37 U. S. 4
These credits, so claimed and rejected, consisted of three items
as stated in the defendant's claims.
1st. Four hundred and ninety-three dollars and sixteen cents
paid the Bank of Metropolis for advances to individuals.
2d. Three thousand eight hundred and fifty-two dollars and
fifteen cents for drafts drawn by the Bank of the United States in
favor of individuals, between 1 October, 1832, and 1 April,
1833.
3d. Two thousand nine hundred and fifty-four dollars and
forty-three cents claimed as a credit for disbursements to sundry
persons whose names were not recollected, the vouchers, as was
alleged, having been destroyed in the conflagration of the Treasury
Department.
After the evidence in the cause was closed, the plaintiffs, by
their counsel, prayed the court to instruct the jury that the
defendant was not entitled to the credit claimed for the three
items above mentioned, which instructions the court refused to
give, but upon the prayer of the defendant gave to the jury the
following instruction:
"That if from the evidence aforesaid they shall believe that the
defendant has faithfully paid over for public purposes, and within
the sphere of his official duty, all the public money which came to
his hands, then the plaintiffs were not entitled to recover,"
and bills of exception were taken on the part of the plaintiffs
to the refusal to give the instructions prayed in their behalf and
to the instructions given on the prayer of the defendant.
There was another bill of exceptions taken which will be noticed
hereafter.
It will be seen from this statement that the instruction prayed
on the part of the plaintiffs was a positive direction to the jury
that the defendant was not entitled to the credit claimed by him
for the three items above-mentioned. If the court erred in refusing
to give this instruction, it must have been either by reason of
some insuperable objection in point of law against the claims or
because there was no evidence whatever before the jury in support
of them. There is no pretense for the instruction prayed on the
first ground. No objection was made to the admissibility in
evidence of the claims, if any could have been made. But none did
exist. It was a claim made by the defendant for disbursements or
payments made by him in discharge of his appropriate duties under
the trust assumed. And the claims, if necessary, under the Act of 3
March, 1797, of which there may
Page 37 U. S. 5
be some doubt, had been presented to the accounting officers of
the Treasury and disallowed, and was, of course, open to be set up
on the trial of this cause.
If, therefore, the court erred in not giving the instructions
asked on the part of the plaintiff, it must have been on the ground
that
no evidence tending to prove the matter in dispute
had been given to the jury. For it is a point too well settled to
be now drawn in question that the effect and sufficiency of the
evidence are for the consideration and determination of the jury,
and the error is to be redressed, if at all, by application to the
court below for a new trial, and cannot be made a ground of
objection on a writ of error. All the evidence on the trial was
admitted without objection, and the instructions asked from the
court did not point to any part of the evidence as inadmissible or
irrelevant, but for a general direction upon the whole evidence
that the defendant was not entitled to the credits claimed by him
for the three items above mentioned.
The general outlines of the case, as stated in the bill of
exceptions, are that the defendant had been a clerk in the Treasury
Department of the United States, and as such, and as agent under
the authority of the Secretary of the Treasury, had disbursed
public moneys under several heads of appropriation, some specific
and temporary, others of a more permanent and general character.
That he was required to take an oath faithfully to perform the
duties of his office, and had performed such duties during the
years 1831 and 1832 and up to 30 March, 1833. That on the night of
30 March, 1833, the Treasury building was consumed by fire, which
destroyed all the books, papers and vouchers, relating to the
public business of the department. That by the course of business
in conducting his agency the money was placed in his hands by
warrants from the Secretary of the Treasury in his favor
as
agent, which warrants were issued by the Secretary upon the
requisition of the defendant stating the purpose for which the
money was required, and at the discretion of the Secretary. The
warrants thus issued were charged to the defendant on the books of
the Treasury and placed to his credit as agent in the Branch Bank
of the United States at Washington, and the moneys drawn out of the
bank by the defendant's checks as such agent in favor of the
individuals respectively, to whom the same was payable, which was
according to the usual practice of other disbursing officers. And
it appeared that after the destruction of the Treasury building, by
an order drawn by the Secretary of the Treasury, all the moneys
Page 37 U. S. 6
standing to the credit of the defendant in the branch bank, on
the 20th of March, 1833, were drawn out except ten dollars. It also
appeared that the books of the bank do not furnish any information
showing the names of the persons or the character of the services
for which the moneys were disbursed, but merely exhibit the dates
of the checks and the amount of the money for which they were drawn
respectively. The defendant also showed that he kept no private
account in the bank nor any other account than as agent. That
during the period in which he had performed the duties of such
agent, he had settled his accounts with punctuality and entirely to
the satisfaction of the accounting officers. That such accounts, so
far as specific appropriations had been made, were settled up to 1
January, 1833, and the others up to 1 October, 1832, and that for
all the vouchers accompanying such settlements, so far as the same
extends, corresponding checks appear in the bank statement. Such
being the general outlines of the case, and no dispute, except in
relation to the three items above mentioned, the question arises
whether there was any evidence before the jury conducing to prove
the disbursements of the defendant thus claimed.
All suspicion of a fraudulent misapplication by the defendant of
the money placed in his hands was disclaimed on the argument, and
the question seemed to resolve itself into the inquiry whether,
under the evidence in the cause, the defendant had entitled himself
to relief in a court of justice or must be turned over to
legislative aid.
This then presents a case where all the books, papers, and
vouchers of the defendant relating to his disbursements and agency
have been destroyed by fire without any fault of his, and is of
necessity open to the admission of secondary evidence. And under
the general rule of evidence, he might be required to produce the
best evidence which the nature of the case under the circumstances
would admit. This rule, however, does not require of a party the
production of the strongest possible evidence, but must be governed
in a great measure by the circumstances of the case, and must have
a bearing upon the matter in controversy, and must not be such as
to leave it open to the suspicion or presumption that anything left
behind and within the power of the party would, if produced, make
against him. But the evidence in this case is not open to the
objection that it was not the best evidence in the power of the
party; no objection on that ground was made at the trial, and the
case is then brought to the single point was there any evidence
before the jury conducing to
Page 37 U. S. 7
support the claim for the disbursements, which were rejected by
the accounting officers.
With respect to the four hundred and ninety-three dollars and
sixteen cents claimed under the charge of moneys paid the Bank of
Metropolis for advances to individuals having claims against the
government, it was proved that it was the practice in the Treasury
Department to pay the clerks, &c., monthly, when there were
funds out of which they could be paid, and that it was usual, when
such moneys were due and payable and there were no such funds or
when the appropriation bill had not been passed by Congress, for
the defendant to give such as required it a certificate showing the
amount due, and that it would be paid when the appropriation bill
should pass. Upon which certificate, the holder would obtain either
an advance or discount from the banks, and that the defendant had
given several such certificates, which, in the winters of
1832-1833, had been brought to the Bank of Metropolis and money
paid on them, and that sometime in March, 1833, after the
appropriation bill had passed, all the certificates held by the
bank were carried to the defendant, who gave in lieu of them a
chock upon the Branch Bank, which had been paid. But the witness
did not recollect the amount paid nor the names of the persons to
whom the certificates had been given, but only that there were
several of them, and the amount considerable, but that the books of
the bank contained no information on the subject.
This was certainly evidence, and that too, not of a very slight
character, conducing to prove the disbursement claimed. The precise
amount was not proved, but all the defendant's vouchers being
destroyed, and the bank books furnishing no information on the
subject, it was a question for the jury to decide as to the amount
thus paid, taking their evidence in connection with the other
evidence in the cause.
With respect to the claims for drafts drawn by the Branch Bank
in favor of individuals between 1 October, 1832, and 1f April,
1833, the evidence was that sometimes when moneys were to be
disbursed at a distance, the defendant would obtain drafts from the
cashier of the bank, upon other banks or branches where the money
was disbursable, which drafts were drawn in favor of the defendant
and endorsed by him to the party who was to receive the money, and
remitted to him by mail, and that such was the usual practice of
other disbursing officers. And it appeared from the
Page 37 U. S. 8
statement of the Branch Bank that the drafts of this
description, drawn in favor of the defendant between 1 October,
1832, and 1 April, 1833, corresponded in amount precisely with the
sum claimed. It does not appear what became of these drafts. But in
the natural course of business they would go into the possession of
the person to whom payment was to be made and a receipt for the
same returned to the defendant, which have been destroyed by the
fire. This evidence, although not conclusive, afforded presumption
that such was the fact. It was, at all events, evidence conducing
to prove the payments, and was matter for the jury.
With respect to the other claim of two thousand nine hundred and
fifty-four dollars and forty-three cents, there is no evidence
particularly pointed to this item. But there was evidence of a more
general character which, under the circumstances of the case, at
least afforded some grounds for the conclusion that the money had
been applied to the payment of claims on the government. It stands
charged in the account presented to the accounting officers of the
Treasury as a claim for disbursements to sundry persons whose names
could not be recollected, the vouchers having been destroyed in the
burning of the Treasury building. The jury had evidence of the
destruction of the vouchers for such disbursements, if any ever
existed; it was in evidence that the money placed in the
defendant's hands was by means of warrants drawn by the Secretary
of the Treasury upon the requisitions of the defendant stating the
purpose for which the money was required -- the amount resting in
the discretion of the Secretary -- and that the warrants thus drawn
were passed to the credit of the defendant, as agent, in the Branch
Bank of the United States at Washington, and drawn out by his
checks as such agent in favor of the individuals to whom the same
was payable, and that all the money had been drawn out except ten
dollars. Under such circumstances, where is the ground upon which
any misapplication of the money is chargeable upon the defendant?
If he has disbursed all the money he has received for the purposes
for which he received it, the government can have no claim upon
him. The amount of money placed in his hands was governed and
limited by the specific purpose and object stated in the
requisitions of the defendant, to which it was to be applied, and
was, of course, confined to disbursements known to the Secretary,
and warranted by law. And it was in evidence that by the practice
of the department no persons entitled to payment through the agency
of the defendant could receive payment from the government
Page 37 U. S. 9
unless their accounts were accompanied with the oath of the
claimant or other satisfactory evidence that he had not been paid.
Add to this that no claim has been made upon the government for
payment of any demand falling under the agency of the defendant.
Does not this afford reasonable ground to conclude that he had
applied all the funds placed in his hands to the purposes for which
they were intended? At all events, it was evidence conducing to
prove it, and the effect and sufficiency of it was a question for
the jury.
It is not intended to apply to this case a different rule than
would be applied to any other agency for the disbursement of money
under like circumstances.
Suppose a debtor should put into the hands of an agent a sum of
money for the payment of specified demands against him, and the
amount limited to such demands, and to be paid in small sums to a
numerous class of creditors, scattered over various and distant
parts of the country, and it should be made to appear that he had
disbursed all the money thus put into his hands, but that the
vouchers for such payments had been destroyed by fire without any
fault of his, and he could not ascertain the names of the creditors
to whom payment had been made, but that no claim had been presented
to his principal by any one of the creditors to whom payment was to
be made by the agent, after the lapse of three years, and all this
accompanied by proof that he had faithfully discharged the duties
of a like agency for several years and regularly accounted for his
disbursements; would it not afford reasonable ground to conclude
that he had disbursed all the moneys placed in his hands by his
principal for the purposes for which he received it, and protect
him against a suit for any balance?
Considering the number and character of the claims to be paid by
the defendant, a lapse of nearly three years from the burning of
the Treasury building to the time of trial, and no claim having
been made by anyone entitled to payment through the defendant's
agency, is a circumstance affording presumptive evidence that all
had been paid.
Upon the whole, under all the circumstances of this case, we are
of opinion that the court did not err in refusing to give the
instructions prayed on the part of the plaintiffs nor in giving the
instructions to the jury that if from the evidence they should
believe that the defendant had faithfully paid over, for public
purposes and within the sphere of his official duties, all the
public money which came to his hands, the plaintiffs were not
entitled to recover.
Page 37 U. S. 10
The second bill of exceptions was abandoned on the argument, and
need not be noticed.
A third bill of exceptions was taken at the trial by which it
appears, that the defendant offered to read in evidence certain
passages from a public document mentioned in the bill of
exceptions. The plaintiffs' counsel consented to its being read as
the defendant's evidence. And after the same was read, the
plaintiffs' counsel requested the court to instruct the jury that
the conversation of the defendant with Mr. Dickins and Mr. McLean,
read from the executive document, was not evidence to the jury of
the facts stated in such conversation, which the court refused to
give.
The entire document referred to is not set out in the bill of
exceptions, and from what is stated no conversation of the
character objected to appears. But the evidence was admitted by
consent. The plaintiffs were entitled to have the whole document
read, and it was all in evidence before the court and jury. But the
objection on the ground that some of the facts stated were only
hearsay evidence fails. The document, so far as it appears on the
bill of exceptions, contains no such conversation. This instruction
was therefore properly refused, and the judgment of the court below
is
Affirmed.
