Action of debt on a bond executed by Alpha Kingsley, a paymaster
in the army, and by John Smith, T. and another, as his sureties, to
the United States. The condition of the obligation was that Alpha
Kingsley, "about to be appointed a district paymaster," &c.,
"and who will from time to time be charged with funds to execute
and perform the duties of that station, for which be will be held
accountable," &c., shall
"well and truly execute the duties of district paymaster, and
regularly account for all moneys placed in his hands to carry into
effect the object of his appointment."
On the trial, the plaintiff gave in evidence a duly certified
copy of the bond, and a
"transcript from the books and proceedings of the Treasury
Department of the account of Alpha Kingsley, late district
paymaster, in account with the United States."
In this account, A. K. was charged with moneys advanced to him
for pay, subsistence, and forage, bounties and premiums, and
contingent expenses of the army, and credited with disbursements of
the same, for the purposes for which they were paid to him, and
showing a large amount of items suspended and disallowed, making a
balance due to the United States of $48,492.53. The account was
thus settled by the Third Auditor of the Treasury, and was duly
certified to the Second Comptroller of the Treasury, and this
balance was by him admitted and certified on 23 April, 1823. The
account was further certified
"Treasury Department, Third Auditor's office, 1 September, 1824,
pursuant to an act to provide for the prompt settlement o�
public accounts, approved 3 March, 1817, I, Peter Hagner, Third
Auditor, &c., do hereby certify that the foregoing transcripts
are true copies of the originals on file in this office."
To this was annexed a certificate that Peter Hagner was the
Third Auditor, &c.,
"In testimony whereof I, William H. Crawford, Secretary of the
Treasury, have hereunto subscribed my name and caused to be affixed
the seal of this department at the City of Washington this 1
September, 1824, (signed) Edward Jones, Chief Clerk, for William H.
Crawford, Secretary of the Treasury."
The seal of the Treasury Department was affixed to the
certificate. On the trial, the District Court of Missouri
instructed the jury that
"As by the account it appears there are in it items of debit and
credit to Kingsley, as district paymaster, it furnished evidence of
his having acted as district paymaster and of his appointment as
such."
By the court:
"There are two kinds of transcript which the statute authorizes
the proper officers to certify. First, a transcript from 'the books
and proceedings of the Treasury,' and secondly, 'copies of bonds,
contracts, and other papers, &c., which remain on file, and
relate to the settlement.'"
The certificate under the first head has been literally made in
this case, and is a sufficient authentication of the transcript
from "the books and proceedings of the Treasury," and is a
substantial compliance with the requisitions of the statute.
The objection that this signature of the Secretary of the
Treasury was signed by his chief clerk seems not to be important.
It is the seal which authenticates
Page 30 U. S. 293
the transcript, and not the signature of the Secretary. He is
not required to sign the paper. If the seal be affixed by the
auditor, it would be deemed sufficient under the statute. The
question, therefore, is not necessarily involved in deciding this
point, whether the Secretary of the Treasury can delegate to
another the power to do an official act which the law devolves on
him personally.
The defendant pleaded that Alpha Kingsley was removed from
office on 1 April, 1815, and on 15 September reported himself to
the Treasurer of the United States as ready for the settlement of
his accounts, at which time and long afterwards he was solvent and
able to pay the full amount of his defalcation; that no notice was
given to him by the Treasury to account for moneys in his hands,
nor to the defendant, until the commencement of the suit, and that
before the commencement of the suit, K. became insolvent. The
United States demurred to this plea; the District Court of Missouri
sustained the demurrer and gave judgment for the United States.
There was no error in the judgment.
Sound policy requires that the accounts of disbursing officers
should be adjusted at the proper department with as much dispatch
as is practicable. This is alike due to the public and to the
persons who are held responsible as sureties, to the individual who
has received advances of money, no lapse of time nor change of
circumstances can weaken the claim of government for reimbursement;
but there may be some cases of hardship where, after a great lapse
of time and the insolvency of the principal, the amount of the
defalcation is sought to be recovered from the sureties. The law on
this subject is founded upon consideration of public policy; while
various acts of limitation apply to
the concerns of individuals, none of them operates against the
government. On this point there is no difference of opinion among
the federal or state courts.
The fiscal operations of the government are extensive and often
complicated. It is extremely difficult at all times, and sometimes
impracticable to settle the accounts of public officers, with as
little delay as attends the private accounts of a mercantile
establishment. But it is always in the power of an individual who
may be held responsible for the faithful conduct of a public agent
to see that his accounts are settled and the payment of any
balance enforced. A notice to the government by the surety that
he is unwilling to continue his responsibility would induce it in
most instances to take the necessary steps for his release.
By the Act of Congress of 3 March, 1797, a notice is required to
be given by the Auditor of the Treasury to any person who had
received public moneys for which he is accountable fixing a
reasonable time for the production of vouchers for the
expenditures, and in default, costs are to be charged against the
delinquent, whether in a suit judgment be given for or against him
on a revision of the settlement by the comptroller, after having
caused notices to be served of the items disallowed, &c., the
decision is declared to be final and conclusive. If there had been
no subsequent act of Congress on this subject, it might be
important to inquire whether the notice authorized by this act was
not merely directory to the officers, and essential only to subject
the delinquent to the penalties provided. By the acts of 3 March,
1797, and 3 March, 1817, material changes are made in the
accounting department of the government, and although the act of
1795 may not be expressly repealed, yet it is abrogated by new and
substantive provisions. Under the present mode of
Page 30 U. S. 294
proceeding against defaulters, the notice authorized by the act
of 1795 is unnecessary.
Although on each of the principal objections relied on as
showing error in the proceedings of the district court, a majority
of the members of this Court think there is no error, yet the
judgment of the district court must be reversed, as on the question
of reversal, the minorities unite and constitute a majority of the
Court.
The United States instituted a suit against the plaintiff in
error, John Smith, T. who, with Wilson P. Hunt, were, by a bond
executed on 7 February, 1810, in the sum of $10,000, the sureties
of Alpha Kingsley, appointed a district paymaster in the Army of
the United States under the act of Congress passed on 16 March,
1802. Alpha Kingsley was dismissed from the service of the United
States in 1815. The action was commenced in December, 1824.
The pleadings are stated fully in the opinion of the Court.
Page 30 U. S. 295
MR. JUSTICE McLEAN delivered the opinion of the Court.
In December, 1824, the United States brought an action of debt
against the plaintiff in error to recover $10,000. The claim arises
on a bond signed by the plaintiff as one of the sureties of Alpha
Kingsley, who is alleged to have been appointed a paymaster in the
army.
The bond was executed on 7 February, 1810, in which the
plaintiff and one Wilson P. Hunt bind themselves jointly and
severally to pay to the United States the above sum. The condition
of the obligation states "that the said Alpha Kingsley is about to
be appointed a district paymaster," &c., "who will from time to
time be charged with funds to execute and perform the duties
attached to that station, for which he will be held accountable,"
&c., and if he shall "well and truly execute the duties of
district paymaster, and regularly account for all moneys placed in
his hands, to
Page 30 U. S. 296
carry into effect the object of his appointment," &c., "then
the obligation to be void."
Several pleas were filed and relied on in the defense.
In the first plea it is asserted that from the time of executing
the writing obligatory, the said Kingsley did well and truly
observe and fulfill the conditions of said bond according to their
tenor and effect.
The second plea contains similar allegations except as to
accounting for all moneys in the hands of said Kingsley, and by way
of excuse the plea states that he was removed from office on the
first day of April, 1815, for various causes assigned, and that on
the fifteenth of September following, he reported himself to the
Treasurer of the United States as ready for settlement, but his
accounts were not adjusted by the government; that at this time and
long afterwards, Kingsley was solvent and able to pay the full
amount of his defalcation; that no notice was given to him by the
Treasury Department to account for moneys in his hands, nor was any
notice given to the defendant below until about the commencement of
the suit. And it is alleged that before the commencement of the
suit, Kingsley became insolvent.
In the third plea it is averred that Kingsley neither at the
time the bond was executed, nor at any subsequent period was
appointed district paymaster.
The fourth plea denies that any money came into his hands as
district paymaster.
To the second plea a demurrer was filed, and issues were joined
on the third and fourth.
In their replication to the fourth and first pleas, the
plaintiffs allege that a large sum of money came into the hands of
Kingsley as district paymaster, and that on a final adjustment of
his accounts in April, 1823, there remained in his hands a balance
unaccounted for, of $48,492.53.
The rejoinders stated that Kingsley did regularly account for
and pay to the plaintiffs all sums of money which came into his
hands as district paymaster.
The jury found the issues of fact for the plaintiffs, and that
the defendant as paymaster was indebted to the plaintiffs in
the
Page 30 U. S. 297
sum of $31,197.14. On this verdict a judgment for $10,000 and
costs of suit was entered.
At the trial, exceptions were taken to the evidence offered,
which being overruled, the following bill was tendered and
signed.
"The plaintiffs, to maintain the issue on their part, read to
the jury a duly certified copy of the bond sued on and offered to
read as evidence a paper purporting to be a transcript from the
books and proceedings of the Treasury Department, containing an
account headed Alpha Kingsley, late district paymaster, in account
with the United States, in which account he was charged as late
district paymaster with moneys advanced to him for pay,
subsistence, forage, bounties, and premiums, and contingent
expenses of the army, and credited with disbursements made under
the same heads of expenditures and showing a large amount of items
suspended and disallowed. By this account it appeared that the same
had been settled by the Third Auditor of the Treasury, and it
showed a balance due to the United States of $48,492.53."
"The account was duly certified to the Second Comptroller of the
Treasury, who admitted and certified the above balance on 23 April,
1823."
There were also the following certificates annexed:
"Treasury Department, Third Auditor's office, 1 September, 1824.
Pursuant to an Act to provide for the prompt settlement of public
accounts, approved 3 March, 1817, I, Peter Hagner, Third Auditor of
the Treasury of the United States, do hereby certify that the
foregoing transcripts are true copies of the originals on file in
this office. Signed, Peter Hagner, auditor."
"Be it remembered that Peter Hagner, Esq., who certified the
foregoing transcripts, is now and was at the time of doing so Third
Auditor of the Treasury of the United States, and that faith and
credit are due to his official attestations. In testimony whereof
I, William H. Crawford, Secretary of the Treasury, have hereunto
subscribed my name and caused to be affixed the seal of this
department at the City of Washington this 1 September, 1824.
Signed, Edward Jones, Chief Clerk,
Page 30 U. S. 298
for William H. Crawford, Secretary of the Treasury."
To this certificate the seal of the Treasury Department was
affixed.
There being no other evidence given to the jury than this
transcript, the court instructed it
"That as by the account, it appears there are in it items of
debit and credit to Kingsley as district paymaster, it furnished
evidence of his having acted as district paymaster and of his
appointment as such. On the facts stated, a reversal of the
judgment entered in the district court is insisted on."
"1. Because the United States neglected to enforce their claim
against Kingsley, and"
"2. Because the court erred in admitting the transcript as
evidence, and by instructing the jury that it conduced to prove
that the defendant was a district paymaster."
That the government has been negligent in settling the account
of Kingsley and collecting the balance of monies in his hands, it
is contended, is shown by the facts stated in the second plea to
which the plaintiffs demurred. From the removal of Kingsley from
office to the final adjustment of his accounts in the Treasury
Department, there was a lapse of about eight years, during which
period, it seems, he became insolvent. That he was able to pay the
amount of his defalcation when he was dismissed is admitted by the
pleadings, and also that no steps were taken by the government to
recover the claim from him or his sureties until a short time
before the commencement of the present action.
Sound policy requires that the accounts of disbursing officers
should be adjusted at the proper department with as much dispatch
as is practicable. This is alike due to the public and to persons
who are held responsible as sureties. To the individual who has
received advances of money, no lapse of time nor change of
circumstances can weaken the claim of the government for
reimbursement. But there may be some cases of hardship where, after
a great lapse of time and the insolvency of the principal, the
amount of the defalcation is sought to be recovered from the
sureties. The law on this subject is founded upon considerations of
public policy. While various acts of limitation apply to the
concerns of individuals, none of them operates against the
government. On this point there is no difference of opinion among
the federal or state courts.
Page 30 U. S. 299
The fiscal operations of the government are extensive and often
complicated. It is extremely difficult at all times, and sometimes
impracticable, to settle the accounts of public officers with as
little delay as attends the private transactions of a mercantile
establishment. But it is always in the power of an individual who
may be held responsible for the faithful conduct of a public agent
to see that his accounts are settled and the payment of any balance
enforced. A notice to the government by the surety that he is
unwilling to continue his responsibility would induce it in most
instances to take the necessary steps for his release.
By the Act of Congress of 3 March, 1795, the Comptroller of the
Treasury was authorized to issue a notification to any person who
had received moneys for which he is accountable to the United
States fixing a reasonable time within which vouchers for the
expenditures of such moneys shall be returned, and if default be
made, costs are to be charged against the delinquent, whether in a
suit judgment be given for or against him.
In the same act, a revision by the Comptroller of the settlement
made by the auditor is authorized, and after having caused notice
to be served of items disallowed, &c., the decision is declared
to be final and conclusive.
This act, it is contended, has never been repealed, and that
until the notice authorized by it shall have been served, a writ
cannot be brought against a defaulter.
If there had been no subsequent acts of Congress on this
subject, it might be important to inquire whether the notice
authorized by this act was not merely directory to the officer, and
essential only to subject the delinquent to the penalties provided.
By the Acts of 3 March, 1797, and 3 March, 1817, material changes
were made in the accounting department of the government, and
although the act of 1795 may not be expressly repealed, yet it is
abrogated by new and substantive provisions. Under the present mode
of proceeding against defaulters, the notice authorized by the act
of 1795 is unnecessary.
The objection made to the authentication of the transcript given
in evidence presents a question of some difficulty.
As the transcript has not been made a part of the record,
Page 30 U. S. 300
the bill of exceptions must be looked to as containing the
ground of objection.
By the second section of the Act of 3 March, 1797, it is
provided
"That in every case of delinquency where suit has been or shall
be instituted, a transcript from the books and proceedings of the
Treasury, certified by the Register (or under the Act of 3 March,
1817, by the Auditor), and authenticated under the seal of the
department, shall be admitted as evidence. . . . And all copies of
bonds, contracts, or other papers, relating to, or connected with
the settlement of any account between the United States and an
individual, when certified as aforesaid to be true copies of the
originals on file and authenticated under the seal of the
Department, may be annexed to such transcripts and shall have equal
validity and be entitled to the same degree of credit which would
be due to the original papers if produced and authenticated in
court."
The auditor certifies that the foregoing "transcripts are true
copies of the originals on file in his office." It is the
certificate of the auditor and the seal of the Department which
make the transcript evidence. If either be omitted, whatever the
transcript may purport upon its face, it is not evidence.
Where copies are made evidence by statute, the mode of
authentication required must be strictly pursued. The legislature
may establish new rules of evidence in derogation of the common
law, but the judicial power is limited to the rule laid down.
There are two kinds of transcripts which the statute authorizes
the proper officer to certify. First, a transcript from the "books
and proceedings of the Treasury," and second, "copies of bonds,
contracts, and other papers, &c., which remain on file and
relate to the settlement."
Under the first head are included charges of moneys advanced or
paid by the department to the agent and an entry of items
suspended, rejected, or placed to his credit. These all appear upon
the books of the Department. The decision made on the vouchers
exhibited, and the statement of the amount, constitute in part the
proceedings of the Treasury. Under the second head, copies of
papers which remain on file and
Page 30 U. S. 301
which have a relation to the settlement may be certified. In
this case, it is essential that the officer certify that the
transcripts "are true copies of the originals which remain on
file."
This certificate has literally been made in the case under
consideration, and the question arises whether it is a sufficient
authentication of the transcript from the "books and proceedings of
the Treasury." A majority of the members of the Court think that
the certificate is a substantial compliance with the requisitions
of the statute.
They connect the certificate of the auditor with the statement
in the bill of exceptions that a "paper purporting to be a copy
from the books and proceedings of the Treasury" was offered in
evidence, and consider that although the auditor states that "the
foregoing transcripts are true copies of the originals on file, in
his office," the certificate can only relate to the transcript
offered in evidence, and that it sufficiently authenticates it.
This construction is strengthened in their opinion by another
statement in the bill of exceptions "that a duly certified copy of
the bond sued on was offered to be read as evidence."
Three of the judges think that the certificate, from the
language used, can only relate to the transcript which contained a
copy of the bond. That it can only authenticate copies of papers
the originals of which remain on file. They consider that the books
of the Department cannot be said to be on file, nor are copies from
the books copies from the originals.
All moneys advanced or paid by the government are charged in the
books of the Treasury, and a transcript from these charges may be
said to be copies from the original, but the credits entered are
copied into the books from the vouchers rendered, and these
vouchers remain on file. A transcript from the books therefore, it
is believed, cannot be said to be copies from the originals on
file. That it is a copy from the books, which is made evidence, and
not a copy of the paper, though it be on file, on which the rough
draft of the settlement may have been entered.
They consider that the statement in the bill of exceptions that
the transcript offered in evidence purported to be a "copy from the
books and proceedings of the Treasury" as merely descriptive of the
paper, and cannot cure the defect in
Page 30 U. S. 302
the certificate. That it is not the body of the transcript which
is to give it validity, but the authentication required by the
statute. The copy may be strictly accurate in all its parts, and
come within the provisions of the law, yet if the seal be not
affixed or the certificate be defective, the paper cannot be
received as evidence. They consider this certificate to be
defective, as every word of it may be true and yet the copies from
the "books and proceedings" may be inaccurate. The Auditor
certifies nothing from the "books," or the "proceedings of the
Treasury," and his language is so explicit in referring to "copies
of originals on file in his office" that the three judges think
that the certificate cannot by reference or any correct rule of
construction be made to authenticate copies from "the books of the
Treasury."
The objection that the signature of the Secretary of the
Treasury was signed by his chief clerk seems not to be important.
It is the seal which authenticates the transcript, and not the
signature of the secretary. He is not required to sign the paper.
If the seal be affixed by the auditor, it would be deemed
sufficient under the statute. The question therefore is not
necessarily involved in deciding this point whether the Secretary
of the Treasury can delegate to another the power to do an official
act which the law devolves on him personally.
A majority of the Court thinks that the transcript from the
"books and proceedings of the Treasury," being admitted as
evidence, did conduce to prove not only that Kingsley acted as
distinct paymaster, but his right so to act.
In the account, he is charged as "late district paymaster," with
moneys advanced to him for pay, subsistence, forage, bounties and
premiums, and contingent expenses of the army, and credited with
disbursements made under the same heads of expenditures of the
army. These transactions not only establish
prima facie
the correctness of the items charged, but show the capacity in
which the defendant acted.
As district paymaster, he receives money and disburses it in
discharge of the duties required of paymasters. His vouchers for
moneys expended prove this, and every item stated in the account
goes to establish the fact that the government recognized the
official capacity which he assumed.
These facts appearing upon the face of the transcript might
Page 30 U. S. 303
well be considered by the jury as at least conducing to prove
the official character of Kingsley.
Although on each of the principal objections relied on as
showing error in the proceedings of the district court, a majority
of the members of this Court think there is no error; yet the
judgment of the district court must be
Reversed, as on the question of reversal the minorities
unite and constitute a majority of the Court.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Missouri and was argued by counsel, on consideration whereof it is
ordered and adjudged 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 for further proceedings to be had therein as to law
and justice may appertain and in conformity to the opinion of this
Court.
