which shall be sold after the first day of July, 1820. Lands remaining unsold at the close of a public sale may be sold at private sale by entry at the land office at one dollar and twenty-five cents per acre, to be paid at the time of making such entry. No lands which have reverted or which shall revert to the United States for failure in any manner to make payment, shall be subject to entry at private sale until they shall have been first offered to the highest bidder at public sale; no such lands shall be sold at public sale for less price than one dollar and twenty-five cents per acre, nor on any other terms than that of cash payment." Statutes of the United States at Large, 66, 67. It would seem that the actual payment of the money forms a condition precedent both in fact and in law to the right of the receiver, register, or other officer of the executive government to part with any portion of the public lands.

we have sufficiently considered of in what has been said on the first and second.

The fourth point, that V. M. Garesche was the agent of the general land office to settle with Boyd, as receiver, that he made such settlement prior to the date of the bond, ascertained that the defalcation had thus accrued, and fraudulently enjoined secrecy on the officers and clerks in fraud of the defendants, we think we have sufficiently shown.

The fact is, he was such agent, and we think that the court below was bound to take notice that he was such without any direct proof. But William Dowsing, the register of the land office, says: "Sometime between the 10th and 20th of May, 1837, V. M. Garesche, Esq., produced to him the letter of his appointment from the general Land Office Department of the United States, authorizing him to examine certain land offices, of which this was one; and from a knowledge derived from a frequent correspondence with the Land Office Department, I knew the letter of appointment which he produced to be genuine."

John Davies says: "Sometime in the spring or summer of 1837, the general government sent an agent, named V. M. Garesche, for the purpose of examining into the condition of the land offices." Robert E. Harris says, that "In the latter part of the spring or the first of the summer of 1837, a settlement took place in the land office, between Col. Boyd, and a man by the name of Garesche, as agent of the government, in reference to such defalcation. He had no other knowledge of the agency of Garesche, or his authority as such, except that he waɛ recognized and regarded by the register and receiver of the land office at Columbus as such agent, and who settled with him as such." This we have thought sufficient.

If, indeed, it be competent for Gordon D. Boyd thus to appropriate $59,622.60 worth of the public domain to himself without paying for it, the task would not be difficult, on the same principle, for him thus to appropriate the balance of the land in his land district; and if he could be permitted to do so, all other receivers of public moneys could do the same in their several land districts, and thus the title of the whole public domain could pass out of the government without the payment of a dollar. The principle or practice that shall thus deprive the United States of her public lands cannot be sound or be supported by this court. If, indeed, it be true that the supposed defalcation of Boyd arose before the date of the bond, and from his having issued certificates for the public lands in his own name and in the name of others without receiving payment of the purchase money therefor-and it is shown by the testimony of the witnesses and *His appointment, whatever may have [*44 the verdict of the jury that such was the man- been its form, was not in the possession or conner of his defalcation-may we not legitimate-trol of the defendants. The injunction of ofly protest against the right of the executive government successfully to call on the judiciary 43*] to aid them in violating the legislation of Congress in this respect, and find security in the confidence that this court will never sanction such a disposition of any portion of the public domain. But what should be the course of the Land Office Department on the matter before us? We think it is easy and natural, and what their duty enjoins, and about which they will have no difficulty.

By proper proceedings to ascertain what lands have thus been entered, set aside the entries and have the lands disposed of as the act of Congress provides; these entries are nullities, and even if a patent had issued it would not affect the title of the United States. For this we beg leave to refer the court to the case of Stoddard et al. v. Chambers, 2 Howard Supreme Court Reports of the United States, 318. There, it is said "no title can be valid which has been acquired against law. The patent of the defendant having been for land reserved from appropriation is void."

We may, then, certainly say that a false certificate made in violation of law and in fraud is void, and does not pass any title to the land out of the United States.

3d. The matters of the third point we think

ficial secrecy by Garesche as to Boyd's defalcation, see the testimony of William Dowsing, and that of John Davies. This suppression of the fact of Boyd's defalcation was a gross fraud on the sureties, who after the defalcation became sureties. It is most probable that had the sureties been informed that Boyd had become a defaulter to the government to that large amount, they would have been sufficiently prudent never to have become responsible for him on the bond. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. 2 Howard, S. C. R. 318. It certainly ought to defeat a false certificate.

The plaintiff's further offered the copy of another and different bond, which was objected to by the defendants; and as it related to another, separate, distinct, and independent matter, the court very properly sustained the objection.

of the testimony, on account of the manner in The plaintiffs also objected to some portions which the several witnesses gave in their testimony, but as the objections were trivial, unbecoming the dignity of the investigation, and as the testimony is in other respects regarded amply sufficient to sustain the verdict, we have not thought it necessary to notice them in detail. When the court charged the jury that the

plaintiffs had made out a prima facie case, the plaintiffs' attorney substantially obtained all the charges he asked for; the court had already permitted the treasury transcript to be given in evidence to the jury, as being in judgment of law sufficient to establish the plaintiffs' right; the jury of necessity regarded them in that light. But the defendants were allowed to impeach the transcripts for illegality and fraud. It was equally regular to impeach them for any omission or mistakes, and thus they were compelled to yield the influence of the rebutting proofs.

ing, but fictitious case the plaintiffs had presented.

To this view of the case, our first answer is, that, if this position has any foundation in law, then it was peculiarly a case in which the estoppel should have been pleaded. It was not an estoppel in pais, coming up incidentally as evidence. The supposed matters of estoppel were the treasury transcripts presented by the plaintiffs as their ground of action, and if regarded by them as records conclusive on the defendants, they should have pleaded them specially in their replication, and not joined the defendIn view of the whole case, we are satisfied it ants in an open and general issue, and then obwill be seen that the said Boyd had not any jected that the defendants should not prove their money of the United States at or after the ex-issue as joined. If, then, it be a case of estoppel, ecution of the bond, but that the same had all it should have been so pleaded. 6 Munford, been paid into the treasury. 120; 2 A. K. Marshall, 143; 3 Dana, 103; 2 J. R. 382; 6 Pick. 364; 14 Mass. 241; 2 Blackford, 465; 2 Penn. 492.

But we say this is not an estoppel, because neither matter of deed or of judicial record. 18 J. R. 490; 3 Wendell, 27.

That his entire defalcation arose from his fraudulently and illegally issuing land certificates in his own name, and in the name of others, without being paid the purchase money, that they ought to be set aside, and the land considered as yet belonging to the government. *And is not an estoppel, because there [*46 That it was a fraud in Garesche to conceal was no mutuality of obligation between the from the sureties the fact of Boyd's defalca-parties to the matter of estoppel. The United tion, and that the judgment of the court below States were not concluded by Boyd's returns, ought not to be reversed, but the executive gov-neither by the account as stated, nor the fictiernment left to the discharge of its duty in tious sales of the public lands, thereby reportsetting aside those illegal entries and certified to have been sold. Estoppel must be mucates. tual. 2 J. R. 382; 3 Randolph, 563. 45] Synopsis of the Argument of John Henderson for Defendants.

Boyd's returns were no stronger evidence than receipts, which never work an estoppel. 12 Pick. 557.

But, so far from the plaintiffs' proof from the Treasury Department being "conclusive," a part, if not all of it, was clearly inadmissible as evidence at all.

The bill of exception filed in this case is of that form which has heretofore met, and we think deservedly, the reprehension of this court. It comprises, at length, all the testimony on both sides, and extends to 161 pages, being all the record, less 17 pages. The various parts of The account showing settlement and balance the testimony is chiefly objected to, with a gen-struck by the Treasury Department against erality of exception, which presents no specific Boyd was no sort of legal proof. It resulted matter of law for the consideration of this from no accounts and charges kept in the court, but devolves it upon this court to sift Treasury Department, and included no charge depositions at length, to ascertain if there be for money advanced or paid out of the departany exceptionable matter to justify the gen-ment, but was only the result of certain treaseral objections taken. ury officers, in stating Boyd's account from reported returns, and data furnished by himself.

We should feel ourselves justified, did we think our defense made it necessary, to object that most of this extended volume of testimony is not before this court on any sufficient points of exception as to entitle it to be reviewed by this court, under the common law rules of proceeding, as a court of error. But, waiving all such objections, we shall meet the plaintiffs' case, regardless of this deficiency.

Now, the rule is settled in the case of United States v. Buford, and in other cases, that in a suit for money which came to the hands of a collecting officer in pais, and not received from the Treasury Department, a treasury statement, in such case, is no evidence of the debt. 3 Pet. 29; 6 Pet. 202; 5 Pet. 292; 8 Pet. 375.

The papers certified from p. 17 to 22 of the record, are of this description, and should not have been admitted in evidence at all. Gilpin's D. C. R. 47.

In aggregating the general objections of the plaintiffs to the five several depositions of the defendants, that they were "incompetent" testimony, and with intimations that plaintiffs' case rested on "conclusive" proof, we can reduce these objections to no other legal posi- The accounts certified from p. 48 to 55 as tion, than that the defendants were estopped "true copies of the originals on file in said from denying the plaintiffs' case by any proof department," are, perhaps, by another proviwhatever. For surely the defendants' testimony sion of law than that which provides for certiwas pertinent to the issue, and it is not obfied transcripts of accounts from the treasury jected that the deponents were not competent books, admissible as secondary proof of the and disinterested witnesses. Nor can it be facts contained, but not necessarily of a debt doubted but the jury rightly estimated this testimony as disproving the plaintiffs' case. Reduced, then, to a legal elementary principle, the sum total of these objections is, that the defendants were concluded and estopped in law from showing the truth against the fair seem

due, and certainly as open to correction or disproof, as accounts and receipts ever are, and having in no sense whatever any judicial verity. See cases cited above.

The plaintiffs' testimony shows that the alleged balance of account due from Boyd was

not of money received after execution of de- him. 11 Pet. 86; 7 Cranch, 206; 7 Wheaton, fendant's bond, but is carried forward as "an 356.

amount remaining on hand per last return," The objections to the charges and refusal to from the months of February or March pre-charge by the court below, we regard as ceding.

The facts, then, which we have assumed as our right to prove are, that this reported balance was a mere fiction of figures, without any reality; and that the fiction was made to figure as fact, by a device, palpably violative of the laws of the United States, in selling the public domain on credit, and charging up the price as cash received.

We have answered, that it was our province to show, and by our proof we have shown, to the satisfaction of a court and jury, that the balance of money on hand, as reported by 47*] Boyd, since the execution of defendants' bond, was a fiction. 5 Pet. 373; 8 Pet.

399.

We have shown by our proof, too, that this balance arose from sales made of the public land on credit, and for which no money was received.

Can this court assume, for a moment, this may be lawfully done by the mere unmeaning device of a receiver, charging up his account sales, that the price was received, when in truth it was not.

The law says credit shall not be allowed for the purchase money on sale of the public lands after 1st July, 1821. Land Laws, 324. That lands subject to entry shall be paid for "at the time of making such entry." Land Laws, 324.

Is there any equitable license for the land officer, or this court, to dispense with the positive requirements of this law?

wholly groundless. The court charged the full strength of the plaintiffs' case, and the other points vindicate themselves on reading. But if this court should possibly find error in the trial, then we fall back upon the first error in the judgment of the court below on the pleadings, and demand the judgment of this court on the plaintiffs' demurrer [*48 to defendants' first rejoinder, in which we think there is manifest error in the court's judgment against us.

John Henderson,

Attorney for Defendants.

Mr. Justice Nelson, after reading the statement in the commencement of this report, proceeded to deliver the opinion of the court:

When this cause was formerly before the court, involving a question arising out of the pleadings, it was held that the condition of the bond was prospective, and subjected the sureties to liability only in case of default or official misconduct of the principal occurring after the execution of the instrument; and that if intended to cover past dereliction of duty, it should have been made retrospective in its language; that the sureties had not undertaken for past misconduct. 15 Pet. 187.

The case is now before us, after a trial on the merits, and the question is, whether or not any breach of duty has been established which entitled the government to recover the amount in question, or any part of it, against the sureties within the condition of the bond as already

Since the verdict rendered under the instruc

tion given by the court below, we must assume that the whole amount of the $59,622.60, of which the receiver is in default to the govern

Now, we maintain, the provisions and re-expounded. quirements of this law rest in a superior and pervading public policy, and, as such, its high commands are in no sense directory, but mandatory and peremptory. Laws founded in public policy have no flexible equities author-ment, accrued against him in consequence of izing any countenance to be given by the courts to their violation. Nor can it be tolerated, to meet any particular act of the citizen, that their known violation should be judicially covered up by an estoppel. Such are the English shipping acts, and so of ours; and of like high statutory policy is the system of our laws for the sale of public lands. 1 Story's Equity,

sec. 177.

In this case, then, the court will declare it to be the duty of the Land Department of our government to disregard these affected and unreal sales, consider them as void, and resume the title to the government, as unaffected by the acts now attempted to be validated; and such, in effect and principle, has been the previous decisions of this court. No title is valid if acquired against law. A patent issued against law is void. 2 Howard, 318; 13 Pet. 511.

Lands not subject to sale by law do not pass, without a register's certificate and payment; and the title of the United States is not diverted or affected thereby. 13 Pet. 498.

So, too, 11 Wheat. 384; 9 Cranch, 87. The objection to Boyd as a witness is not well taken. He was exonerated by the parties for whom he deposed, for both debt and costs, and had, therefore, no interests disqualifying

the entry of public lands in his own name, and in the name of others, without the payment of any money in respect to the tracts entered in his own name, and without exacting payment of others, in respect to the tracts entered in their names; and all happening before the 15th June, 1837, the date of the bond. So the jury have found.

The fraud, thus developed, was accom. plished at the time by means of false certificates of the receipt of the purchase money by the receiver, which were given by him in the usual way, as the entries for the several tracts of land were made at the register's office, and also by entering and keeping the accounts with the government the same as if the money had been actually paid as fast as the lots were entered. The monthly or quarterly returns to the proper department would thus appear unexceptionable, and the fraud concealed until payment of the balances should be called for by the government.

According to the finding of the jury, therefore, the whole of the money, of which the receiver is claimed to be, and no doubt is, in default, and for which the sureties are and ought to be made responsible, were not only not in his hands or custody at the time of the execution of the bond, but, in point of fact,

T'he acts of the receiver, out of which the defalcation in question arose, were in direct The sureties cannot be concluded by a fabriviolation of this provision of law, and con-cated account of their principal with his credstituted a breach of official duty, which made itors; they may always inquire into the reality him liable at once as a defaulter to the govern- and truth of the transactions existing between ment, and would have subjected his sureties them. The principle has been asserted and upon the official bond, if one had been given, applied by this court in several cases. covering this period. It was doubtless by some accident that the bond was omitted, as it will be seen by reference to the Acts of Congress, 3d March, 1833, sec. 5 (4 Statutes at Large, 653), and 3d of March, 1803, sec. 4, and 10th of May, 1800, sec. 6 (2 Statutes at Large, 75, 230), that a bond with sufficient sureties should have been given by the receiver before he entered upon the duties of his office.