ing prior to the date of the bond, then the bond was fraudulent and void-was erroneous.

The condition of the bond was prospective, and fraud in respect to past transactions, not within the condition, could not render the instrument void prospectively.

Nor should the acts and declarations of the

agent of the government have been allowed to be
given in evidence, without first establishing his
Secondary proof of the contents of a let-
agency.
without first accounting for the nonproduction of
ter of appointment should not have been received,
the original.

not been deemed as coming within the cognizance of the courts of Florida, because the 8th article of the Treaty of 1819 did not embrace them; it only provided "That grants of land made by His Catholic Majesty, or by his lawful authorities, should be ratified and confirmed to the persons in possession of them, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty." Actual manual possession has never been required to give title, which demurrer was sustained by the court below, Where there was a demurrer to a rejoinder, but such identity must be established as to en- and the party, on leave, filed an amended rejoindable the courts to ascertain with reasonable cer-er, this court cannot be asked to decide upon the demurrer. The point was waived by the filing of tainty where the land lies; as was held in Hanthe amended rejoinder. son's case, 15 Peters, and others. And this may be shown either from the face of the grant, or by a legal survey made by the surveyor-general in conformity to the grant, during the time he had power to make such surveys.

Order.

If a judgment for costs be given against the United States by the court below, it must be reversed, as the United States are not liable for

costs.

THI

HIS case was brought up by writ of error from the Circuit Court of the United States for the Southern District of Mississippi. It was formerly before the court, and reported in 15 Peters, 187.

The following statement of the case was made out by Mr. Justice Nelson, and prefixed to the opinion of the court:

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel; on consideration whereof, it is the opinion of this court that the claimants can take nothing under the concession in this case; The plaintiffs brought an action of debt whereupon, it is now here ordered and decreed against the defendants in the court below, upby this court, that the decree of the said Su- on a receiver's bond, in the district of Missisperior Court in that case be, and the same issippi, for defalcation in office, and in which the hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said Superior Court with directions to dismiss the petition of the claimants.

latter obtained the verdict.

The declaration was in the usual form for the penalty, to which several of the defendants, after craving oyer, pleaded performance. The bond bore date the 15th June, 1837, in the penalty of $200,000, and after reciting that Boyd had been appointed receiver for the term

THE UNITED STATES, Plaintiffs in Error, of four years from the 27th of December, 1836,

V.

GORDON D. BOYD et al., Defendants.

Sureties on receiver's bond not liable for moneys accounted for by him as receiver before its execution-receiver's accounts do not conclude sureties-fraud in avoidance of bondjudgment on demurrer waived by withdrawal and proceeding to issue-U. S. not liable for costs.

The Act of Congress passed on the 24th of April, 1820 (3 Statutes at Large, 566) which substituted cash payments in lieu of credit sales of the public lands, made no exception in favor of the receiver. If he can purchase at all, it must be by placing his own money with the other moneys which he holds in trust for the govern

ment.

30] The returns of the receiver to the Treasury Department are not conclusive evidence in an action by the government, against the sureties upon the receiver's bond. If the sums of money stated in such returns were not actually in the hands of the receiver, the sureties are allowed to show how the fact was.

The sureties cannot be concluded by a fabricated account of their principal with his creditors; they may always inquire into the reality and truth of the transactions existing between them.

An instruction given by the court below, viz., that if the jury believed that a fraudulent design existed on the part of the receiver and an agent of the government, to conceal defalcations exist

NOTE. As to official bonds and liabilities of the

sureties thereon, see note to 3 L. ed. U. S. 708;

21 L.R.A. 738; 51 L.R.A. 222.

As to actions upon, and construction of official bonds, see note to 6 L. ed. U. S. 578. Suretles for second term not liable for delinquencies of first term, see note to 1 L.R.A. 118. 86

the condition was, that he should faithfully execute and discharge the duties of the office.

The plaintiffs in their replication assigned for breach, that after the 27th December, 1836, and while he was receiver, and as such, the said Boyd received divers large sums of the public moneys, amounting to the sum of $59,622.60, and which he had failed and neglected to pay over to the government.

To this replication the defendants demurred, and therefore the plaintiffs put in an amended replication; and in which a second breach was assigned, alleging that the said Boyd, after 27th December, 1836, and on divers days and times between that day and the 30th day of December, 1837, while he was receiver of the public moneys, and as such, received divers large sums of the public moneys, amounting in the whole to the sum of $59,622.60; and *further, that [*31 this sum remained in the hands of the said Boyd, as such receiver, on the 30th September, 1837, and that he, then and there, wholly failed and neglected to pay over the same.

To this amended replication the defendants demurred, and assigned for causes

1. That the breaches set forth did not state the time when the said Boyd, as such receiver, received the moneys mentioned therein; nor whether the said sum was received before or after the day of the date of the bond.

2. That the said breaches did not state that

the said Boyd failed or neglected to pay over
the money received by him as such receiver, at
any time after the date of the bond.

The plaintiffs joined a demurrer; and the
Howard 5.

court below gave judgment for the defendants. the public lands were going on at Columbus, The cause came up to this court on a writ of error, upon which the judgment was reversed, and the case remanded for further proceedings. When the cause came back to the court be low, Boyd, after craving oyer, pleaded separately performance, and to the replication as signing breaches he rejoined, setting forth a former recovery in assumpsit in bar of the action against him, to which the plaintiffs answered, nul tiel record. This issue being found for the defendant, he was discharged without day.

And the counsel for the defendants prayed the court to instruct the jury

2. That there was no sufficient legal evidence | case of exception. Agency is a contract, and before the jury of the agency of Garesche. what constitutes it is matter of law. 1 Liver3. That fraud could not be imputed to the more on Agency, 25. In this case, the learned United States. judge refused to decide whether there was proof of agency, and yet admitted secondary evidence, which was not admissible to establish it; certainly not without notice to the plaintiffs to produce papers in their possession. As the acts of an agent bind his principal only when within the scope of his powers, it is indispensable to prove the character and extent of his powers before it can be determined whether a particular act is to have that effect. United States v. Brig Burdett, 9 Peters, 682. 2. Boyd was an incompetent witness. He was а sworn officer, and made his returns under the sanction of an oath; he was admitted as a witness to prove that these returns were not true. Public policy strongly forbids this, and the maxim of law, nemo allegans suam turpitudinem est audiendus, applies.

1. That if the jury found that the balance claimed by the United States from Boyd arose from his returns, as receiver, of entries of public lands, made by him and others, prior to the execution of the bond, and that no money had been paid for the same on such entries before or after the execution of said bond, and that the entries have been made lawfully without payment, then the sureties were not liable.

2. That the facts stated in the transcripts of the returns made by Boyd, of moneys on hand, were not conclusive against the defendants, but might be explained, contradicted, or disproved by the evidence.

In

The case of United States v. Leffler, 11 Peters, 86, does not conflict with this position. that case the testimony of the principal obligor was not inconsistent with his official conduct. *3. But if Garesche's acts were to be [*35 permitted to influence the jury, on the proof

3. That if the jury believed that the balance claimed by the United States arose out of moneys received by Boyd before the execution of the bond, and that the same was not held by him, as receiver, in trust for the government, at or after the execution of the bond, but had been used, wasted, or converted by him to his own use, prior to said execution, then the sure-of agency submitted in establishing a fraudu ties were not liable.

The court charged the jury, that the evidence on the part of the p'aintiffs made out a prima facie case; but that if they believed, from the whole evidence, that the defalcation of Boyd arose from the entry of lands in his own name and in the name of others without payment 34*] of money for the same, and previous to the 15th day of June, 1837, the date of the bond, the sureties were not responsible.

lent combination, then the bond previously executed by Boyd, and the defendants as his sureties, was admissible to rebut the inference that they were fraudulently induced to execute the bond on which this suit was instituted. Fraud is an extrinsic circumstance, which, if it exists, will vitiate the act infected; but all extrinsic circumstances are admissible to rebut such an allegation. 2 Starkie on Evidence, title Fraud, 586; Estwick v. Caillaud, 5 Term Rep. 426.

The court further charged the jury, that if they believed from the evidence that a fraudu- II. After the decisions of this court in the lent design existed, on the part of Boyd and cases of Linn v. The United States, 15 Peters, Garesche, to conceal the fact of Boyd's defal- 290, Ferrar & Brown v. United States, 5 Peters, cation from the sureties until they should 373, and The United States v. Boyd, 15 Peters, execute the bond; and that such design was 187, I do not feel at liberty to argue that the communicated to the Secretary of the Treasury, official accounts of the receiver are conclusive and his answer received before the actual ex-against his securities, or that they are responecution of the bond, that then the bond would be fraudulent and void, and the sureties not liable.

To the instructions as given, and also to the refusal of the court to give the constructions as prayed for, the counsel for plaintiffs excepted. The jury found a verdict for the defendants.

The cause was argued at the preceding term by Mr. Mason (then Attorney-General) for the United States, plaintiffs in error, and by Messrs. Cocke and Henderson for the defendants in

error.

Mr. Mason made the following points:

I. The court erred in admitting testimony objected to, and in rejecting testimony offered by the United States to rebut defendants' evidence.

1. There was no legal proof of Garesche's agency, or of the extent of his powers to bind the United States. If any such agency existed, the instructions were of record in the Treasury Department, could be made evidence in the mode prescribed by law, and secondary evidence was inadmissible. To this general rule of evidence there are some exceptions; but this is not one, or within the principle of them. Jacob v. United States, 1 Brock. Rep. 528, a

sible for past defalcations, when the language of the condition is not retrospective.

On the merits, it is respectfully submitted, that, on another assignment of breach of the condition, the sureties may be held liable for so much of Boyd's default as arose from his certificates for lands taken up by himself, for which he did not pay over the money when required to do so. There is no legal disability in the receiver to enter public lands.

In United States v. Boyu, 15 Peters, 187, the court held that "it matters not at what time the moneys had been received, if after the appointment they were held by the officer in trust for the United States, and so continued to be held at and after the date of the bond," the securities are bound. As a necessary counterpart of this proposition, if he was so indebted for lands entered by himself, while in office, and the United States chose to recognize the entry so made, and required payment at and after the date of his bond, his dereliction "was not complete" until his refusal to pay, or his failure to receive from himself; and for such dereliction his securities were liable. Issuing a certificate without payment to himself on his own entry is official misconduct; but that is

In this view, if correct, it is important that there should be another trial to enable the government to make a new assignment of breach, so as to present this inquiry.

not such a misconduct as to vacate the sale, | to sustain the action. If we shall find that unless the United States insists that it is no they are not, then the court cannot legitimatesale. ly disturb the verdict of the jury for the defendants. To the point of the admissibility of the transcripts of the accounts in gross, we cite, that "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 debits and credits [*37 as they were acted upon by the accounting officers of the department. United States v. Jones, 8 Peters, 375.

The verdict for the defendants is general. The court below refused to instruct the jury that fraud could not be imputed to the United States, but gave the third instruction, which it is submitted was wholly erroneous. The jury were charged, if they believed from the evidence "that a fraudulent design existed between Boyd and Garesche to conceal the fact of Boyd's defalcation from the sureties, until they should execute the bond, and that such design was communicated to the Secretary of 36*] the Treasury, and his answer received before the actual execution of the bond, that in such case the bond would be fraudulent and void, and the sureties not liable."

The defendant is unquestionably entitled to a detailed statement of the items which compose his account. Ibid. A certified statement of the balance due and a report thereof to the comptroller, is not such a transcript from the books and proceedings of the treasury as may be given in evidence under the second section of the Act of the 3d March, 1797. United States v. Patterson, Gilpin's Dist. C. R. 47.

Fraud to have this effect is either matter of law or matter of fact. The instruction pro-ceivers of public moneys, for the sale of public ceeds on the assumption that the fraud in this case was fraud in fact, which was left to the jury. Assuming even that the United States may be responsible for the fraudulent conduct of its agents and officers, this instruction was

erroneous.

1. Because the bond, being prospective in its operation, was not in law or in fact vitiated, if the prior defalcation was concealed from the sureties, or unknown to them.

In looking to the duties and liabilities of relands in any land district of Mississippi, there is, perhaps, no form in which public moneys can come into their hands officially, for the pay. ment of which sureties are chargeable, except it be for moneys received for the sale of public land sold in conformity with the requirements of law. A detailed statement of the items is then indispensably necessary both to give in. formation of the plaintiffs' demand, and to en. able the defendants to defend themselves 2. Because there was no proof before the against any illegal or unjust charge; for ex jury of Garesche's agency, or of the scope of ample, if the item were for the sale of a cer his powers, and the court ought not to have tain section of land in a certain township and left to the jury to frame their verdict on a range, it would be competent for the defendstate of facts which the evidence did not estab-ants to show that the land was not in the land lish. The court having refused to charge the district, had never been offered for sale by the jury on the question, was in error to assume, proclamation of the President, was some one in this instruction, that the agency existed to of the variety of Indian or other reservations, the extent of affecting the United States by and that the title had in no manner been afhis fraudulent acts. Hunter v. United States, fected by the supposed sale. But to allow a 5 Peters, 173. certified statement of a mere money balance in

balances, to inculpate the defendants would, of necessity, work judicial oppression and injustice; we therefore repeat that the plaintiffs have not made out such a case as would enable them to recover, and that the verdict of the jury for the defendants cannot in this court be disturbed.

3. There is no intimation of what the sec-gross, or certified statements of money quarter retary's answer was, to have the effect of vitiating the security. All that was required was that Boyd and Garesche conspired to conceal the default; that such design was communicated to the Secretary, and his answer received, no matter what it contained; that fact, with the others, wholly insufficient of themselves, in the opinion of the court avoided the bond. It is not conceived possible that such a state of facts is to deprive the government of its resort against the sureties for the official misconduct of their principal.

The case having arisen in Mississippi and tried there, if her laws are to have effect on the subject (but it is believed they have not), the same principle there prevails; thus, in an action of indebitatus assumpsit, the plaintiff shall file By law the receiver is to execute bond, with with his declaration an account stating disapproved security. The duty of approving can- tinctly the several items of his claim against not be delegated to an agent; and as no agency the defendant, and in failure thereof, he shall can exist but to do a lawful act, the ministerial not be entitled to prove before the jury any duty of seeing the bond executed, and trans-item which is not so plainly and particularly mitting it to the Treasury Department, where it was by law to be approved, could not, in the nature of things, include power to vacate the bond by misconduct of the agent. And hence the importance in this case of showing, by proof, the scope of the supposed agent's powers. Mr. Cocke, for defendants:

[After arguing the point of the demurrer to the rejoinder, came to the treasury transcripts.] We are here called upon to examine whether these certified balances are evidence sufficient

described in the declaration as to give the defendant full notice of the character thereof. Howard and Hutchinson's Digest of the Laws of Mississippi, 590, sec. 6.

From any view we have been enabled to take of the subject, whatever may be the nature or manner of the subsequent proceedings, the verdict in this case cannot be disturbed.

The next subject that may engage the atten. tion of the court is an authenticated [*38 abstract of lands purchased by Gordon D. Boyd

and others, previous to his being appointed receiver.

Also a certified abstract of lands purchased by Boyd in his own name previous to his being appointed receiver.

Also a certified abstract of lands assigned to Boyd previous to his being appointed receiver.

Also a certified abstract of lands purchased by Boyd after he was appointed receiver.

Also a certified abstract of lands purchased by Boyd in company with others after he was appointed receiver.

And also a certified abstract of lands as signed to Boyd after he was appointed receiver.

These several lists we have examined with care, and looked for their application to the matters in litigation in this suit with anxiety; and if they have the remotest connection with any matter here, on inquiry we confess we have not been able to discover it.

If, however, the court shall perceive their connection and importance, the judges will not fail to make the proper application and determine the weight to be given them in the evidence; we acknowledge our inability to do so.

legal estoppel, or whether, allowing them to be free from the objections we have interposed to their admissibility, they are to be taken as mere prima facie evidence, and like all prima facie or presumptive evidence may be rebutted by other contradictory proofs, or attacked for fraud and imposition.

The Act of Congress of the 3d of March, 1797, uses this language, "shall be admitted as evidence." Its admissibility only is provided for; but nothing is said as to its effect or the amount of credence to be given to it. It is exparte and in derogation of the fixed rules of evidence, and cannot be extended by implication to prohibit suretics from ascertaining the truth, or freeing themselves from the supposed liability of false reports made to the department.

In the case of The United States v. Eckford's Executors, 1 Howard's Supreme Court Reports, 262, 263, the court say: "The government must show the amount of the defalcation of the collector during the term for which the defendants were suretics, to charge them, and this is not done on the face of the general transcript. It is necessary, therefore, to have a restatement of the account for this purpose. The restatement does not falsify the general account, The remaining balance of the plaintiffs' tes- but arranges the items of debts and credits, so timony is certain certified money accounts of as to exhibit the transactions of the collector the United States with Gordon D. Boyd, re- during the four years in question. Whether ceiver of public moneys. These purport to be this be done by depositions or in the form of the quarterly statements of Boyd, of moneys the transcript may not be material. We think remaining on hand from quarter to quarter, that the transcript or restatement of the acand stand obnoxious to the objections we have count as explained by the depositions was before considered. First, that they are not ac- competent evidence to the jury. This statecompanied with transcripts from the books and ment, as appears from deposition of Tarbutt, is proceedings of the treasury, showing the items deficient in not giving a!! the credits to which which constitute the accounts in gross. Second, the collector was entitled, but as it relates to that the lands sold for which the balance is the matter in controversy it is evidence. The supposed to be created are not stated; and jury will determine what effect it shall have; Third, that the suretics should not thereby be the amount charged to the collector at the comdenied all opportunity of defending themselves,mencement of the term is only prima facie evieven by showing that the lands were not subject to sale, that the title thereto yet remained with the government, or to such person as they might otherwise belong. But we will ask the favor again to call the attention of the court to this subject, when we shall consider the testimony of the said Gordon D. Boyd and other witnesses for the defendants. The plain-ed that the duty of the treasury officers in settiffs here rested their cause. The defendants, in their defense, offered the testimony of the witnesses, William Dowsing, John Davies, John D. Montgomery, William B. Winston, Robert E. Harris, and the said Gordon D. Boyd.

To which the plaintiffs objected as incompetent, on the ground that the official returns or reports of Boyd, as receiver, could not be contradicted or explained by parol evidence; and the plaintiffs, by their attorney, thereupon moved the court to charge the jury that the official returns of Gordon D. Boyd, made to the Treasury Department, under the sanction of his oath of office, were conclusive against his Puretics. But the court permitted the testimony 39*] of the said witnesses to be given to the jury. Before we examine that testimony, we are called upon to determine whether the matturs referred to in these treasury transcripts and abstracts are, in law, conclusive upon the defendants, and fix their liability beyond all controversy, like unto a judicial sentence or other

dence against the sureties.

"If they can show, by circumstance or otherwise, that the balance charged in whole or in part had been misapplied by the collector prior to the new appointment they are not liable for the sum so misapplied."

It was, in the case here referred to, contendtling these kind of accounts were in their nature judicial and conclusive, but the court did not sustain such views; on the contrary, regarded them as prima facie only, and subject to be rebutted by circumstances or otherwise. But we contend that if they had been regarded in the nature of judicial sentences, being merely certified balances in gross, they were not admissible in evidence, any more than would be the minute of a final judgment of a court unsupported by any writ, pleadings, or proofs. The instruction, therefore, of the court [*40 to the jury, that the evidence on the part of the plaintifl's made out a prima facie case, was certainly as strong for them as they had any right to demand. Taking these treasury transcripts, then, as containing a prima facie showing of the defendants' liability, we maintain that a full and complete defense is found for them on the following grounds:

1st. That all moneys that were in fact received by Boyd, as receiver, had been well aud