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OF THE

Supreme Court of the United States,

AT

OCTOBER TERM, 1873.

UNITED STATES, Piff. in Err.,

บ.

MRS. BESSIE ELGEE GAUSSEN, Wife of Edmond J. Gaussen, Exrx. of the Last Will and Testament of her Father, John Kingsbury Elgee, Deceased.

(See S. C., 19 Wall., 198-214.) Transcript from government books, when evidence accounts, how stated-accounts of revenue officers-when admissible against sureties.

1. Under the Act of March 3, 1797, the transcript from the books of the department' admissible in evidence against a revenue officer should not be a garbled or mutilated statement; but it is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of any one account.

2. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books.

3. It should give the items on each side of the account, but they may be condensed and stated in a briefer form than they stood upon the original

entries.

4. Accounts rendered by a revenue officer are admissible as entries made against the interest of the party making them.

5. They are admissible against the sureties, because a surety is bound by the acts and declarations of his principal, being within the scope of the business, as part of the res gesta.

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tiff in error:

1. Section 2 of the Act of March 3, 1797, 1 Stat. at L., 512, 513, enacts, "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 registry and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the case shall be thereupon authorized to grant judgment and award execution accordingly."

There can be no doubt that this applies to sureties as well as principals.

Smith v. U. S., 5 Pet., 292; U. 8. v. Eckford's Exrs., 1 How., 250.

What the statute requires is, full transcripts of the accounts of disbursing officers, as made in the regular course of business by the accounting officers of the Treasury, and where such transcripts and not mere balances are offered, they are to be received in evidence.

Gratiot v. U. S., 15 Pet., 336; U. S. v. Eckford's Exrs. supra; Hoyt v. U. S., 10 How., 109. In the present case, the adjustment by the auditor of Barrett's account, from his appointment to office under his bond, July 25, 1844, until his retirement, Oct. 12, 1845, is given in detail, with subsequent adjustment made in 1848 and 1854. These reports evidently give all the details which the Treasury Department is accustomed to give in similar accounts, and this is all that the law requires, namely: "A transcript from the books and proceedings of the Treasury." There being but one certificate to them all, is no objection to their admission, or to treating them as separate and distinct accounts. The office of the certificate is, to show that the accounts are properly authenticated, and, if they are connected so as to leave no doubt of their authenticity, this is all that the law requires.

2. The court likewise erred in excluding the accounts rendered by Barrett. They seem to be complete, and in no respect partial or fragmentary, and being rendered by him to the Govthey are admissions on his part of the facts ernment in the performance of his official duty,

therein stated.

Whitnash v. George, 8 Barn. & C., 556; Middle1 Phil. Ev., 4th Am. ed., 307, n., 525, 526; ton v. Melton, 10 Barn. & C., 317.

Messrs. J. M. Carlisle and J. D. McPherson, for defendant in error:

The reports of the auditor and the accompanying statements of difference were not admissible in evidence separately from the quarterly returns.

The Act of March 3, 1797, makes a transcript from the books and proceedings of the Treasury, evidence in suits like the present.

But not everything which a treasury officer chooses to write upon the books of the Treas41

ury, thereby becomes evidence. Those matters, absence from the United States. It results from of which the treasury officers have official the provisions that the officer is entitled to the knowledge, and which upon such knowledge they decision by the accounting officers on every have recorded in the books of the Treasury, item, and this court so rules in the case of U. thereby become evidence. But when they ascer- S. v. Jones, 8 Pet., 375, 382. tain facts by evidence, that evidence becomes part of their proceedings, and their conclusions, apart from the evidence upon which they are founded, are not evidence at all. This is clearly stated in U. S. v. Jones, 8 Pet., 375, 381.

The quarterly returns were not admissible in evidence, without the auditor's report.

The defendant is entitled to the benefit of all credits allowed by the accounting officers. But as credits claimed, if not admitted by the accounting officers, must be proven, then it follows that to admit the quarterly returns without the auditor's reports, would be to deny the defendant the benefit of all credits given him at the Treasury, and put him to proof of all the credits anew. This would have been a great hardship and one which no court would impose, especially if, as stated in the bill of exceptions, the reports thus omitted contained credits which do not appear in the quarterly returns, but do appear first in the settlements made after the collector's death, and which, with other settlements, the United States declined to offer with the quarterly returns.

See, U. S. v. Gilmore, 7 Wall., 494, 19 L. ed., 283; U. S. v. Edwards, 1 McLean, 467.

There are debits in the transcript, manifestly not within the scope of the liability sought to be enforced.

Mr. Justice Hunt delivered the opinion of the court:

This is an action brought upon a bond of Thomas Barrett, as Collector of Customs for the Port of New Orleans. The testator, John Kingsbury Elgee, was one of the sureties upon the bond.

Upon the trial, the bond of Barrett, the collector, was produced and the signature of the defendant's testator, as one of the sureties therein, was duly proved. Further to maintain the action, plaintiffs' counsel offered in evidence "copies of the reports of the First Auditor of the Treasury of the United States, numbered respectively 5,688, 5,700, 5,856, 5,870, 6,391, 6,423, 9,241 and 15,817, as admitted and certified by the Comptroller and Commissioner of Customs, all of said papers being It may be said that the defendant could have fastened together as a whole, and embraced in referred to or even put in evidence the quar- one certificate. The defendant, "making no obterly returns and the auditor's reports as an- jection to the form or substance of the certifinexed to the petition, and could thus have ob-cate, objected to this evidence, on the ground tained the advantage of which the course of the that the Act of Congress making evidence tranplaintiff in the trial is supposed to deprive him. scripts from the books of the Treasury DepartBut this is no sufficient answer to the objection. ment, applies only to public defaulters, and that The examples above given are mere illustrations the same are not evidence against sureties; and of the evil of an incomplete transcript and al- also on the further ground that said returns though in this particular case the remedy may were fragmentary, incomplete, and partial; and be easy, that does not justify the plaintiff in also on the ground that said reports charged mutilating the transcript, or presenting an in- Barrett with gross sums and balances, without complete one, and throwing on the defendant giving details. The evidence was excluded, and the onus of completing it. plaintiff's counsel excepted to the ruling.

But if the plaintiffs had offered in evidence the complete transcript of which they offered parts, it would not have been admissible.

It is on its face fragmentary and imperfect, and it moreover contains items not within the scope of the liability of the surety on whose bond the suit is brought. We assume that, under the Act of 1797, which alone makes such a transcript evidence: 1. The transcript must contain all the proceedings. 2. It must contain

a decision either of allowance or disallowance of all claims to credit, which have been sub mitted to the accounting officers. 3. It must not contain debts manifestly and clearly not within the scope of the account settled and adjusted.

If the transcript be liable to any of these ob jections, the proper course is to exclude it. And this course imposes no hardship on the United States. As this suit cannot be barred by limitation, and it is not liable for costs, it has only to submit to a nonsuit and correct the transcript in the particular objected to. The transcript was incomplete.

U. S. v. Patterson, Gilp., 44.

The Act of 1797 declares that no credit, not allowed by the accounting officers, shall be allowed on the trial, unless it has been presented to the accounting officer "and disallowed," or has not been presented by reason of accident or

The plaintiff also offered in evidence a statement of the account of said Barrett with the United States, made by said Barrett to the United States while Collector of Customs, and certified as true and correct copies of said original statements. This evidence was objected to on the ground that said statement was not legal proof of the existence of a debt by said Barrett, did not tend to prove the same and was not competent evidence thereof; and that the same was fragmentary and incomplete. This evidence was excluded, and plaintiff excepted to the ruling of the court.

revenue officer

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By the Act of March 3, 1797, 1 Stat. at L., 512, 513, it is enacted: "Sec. 1. That when any shall neglect or refuse to pay into the Treasury the sum or balance reported to be due to the United States upon the adjustment of his accounts, *it shall [*199 be the duty of the Comptroller to institute suit for the recovery of the same. Sec. 2. That in every case of delinquency, where a suit has been or shall be instituted, a transcript from the books and proceedings of the Treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly."

86 U. S.

This statute proceeds upon the theory that | condensed when carried to a ledger account, and the officers of the United States shall make up the results of many items or of some considera212*] the account *of every revenue officer, that ble period of time, may be stated in a briefer it shall adjust the same on its books, and that form than they stood upon the original entries. the account thus stated and adjusted shall stand The means of particular information are open as and for the sum for which such officer shall be to either party. We see no objection on this liable to the Government. This, no doubt, is ground to the evidence now presented, and are subject to correction by such competent evidence of the opinion that there was error in its excluas may be produced. In other words, the state- sion. ment is prima facie evidence only, not absolute and conclusive.

In furtherance of this idea it is the duty of the Comptroller at once to institute suit for the recovery of the balance thus found and stated. A second result, and one indispensable to the existence of the theory, is, that the books shall be evidence of the truth of the amounts thus stated and declared to be due to the United States. The Act, therefore, provides that a transcript from these books and proceedings shall be admitted in evidence, and that, thereupon, the court is authorized to proceed to judgment and execution.

In the present case "copies of the report of the first auditor," numbered respectively 5,688, etc., and eight in number, were offered in evidence. The bill of exceptions states that no objection was made to the manner in which they were certified.

The suggestion that the Act is applicable to a defaulting principal only, and not to a surety, is not pressed and need not be considered.

The objection that the reports were frag

There was error also in excluding the evidence of the accounts rendered by Barrett, the principal. They seem to be complete, not partial or fragmentary, as alleged, and being statements made by him to the Government in the performance of his official duty, they are evidence against the party making them not only, but his sureties as well, and against third persons in privity with him. The authorities place the rule upon the grounds: 1, that the entries made are against the interest of the party making them; and 2, that a surety is bound by the acts and declarations of his principal, [*214 being within the scope of the business, as a part of the res gestœ. 1 Phil. Ev., 4th Am. ed., p. 307, and note, also, pp. 525, 526; Plaxton v. Dare, 10 Barn. & C., 17; Middleton v. Melton, 10 Barn. & C., 317.

The judgment must be reversed and a new trial had.

mentary and incomplete is not sustained by the THE WESTERN UNION TELEGRAPH COM

PANY, Plff. in Err.,

v.

CHARLES EYSER.

(See S. C., 19 Wall., 419-433.)

Supersedeas bond-writ of error, when filed.

1. Under the 11th section of the Act of June 1, 1872, the supersedeas bond may be executed within sixty days after the rendition of the judgment, and later, with the permission of the designated judge. before, or simultaneously with, the filing of the 2. The writ of error may be served at any time bond.

facts. As presented in the record each report is complete and perfect in itself. Each report contains all upon the subject during the time that it purports to represent. In the aggregate they cover the whole period of Barrett's service. The statute says that a transcript from the books shall be admitted as evidence. A transeript or a transcribing is substantially a copy. A copy from the books, and not of the books, shall be admissible in evidence. An extract from the books, a portion of the books, when authenticated to be a copy, may be given in evidence. While a garbled statement is not evidence, or a mutilated statement, wherein the debits shall be presented and the credits suppressed, or perhaps a statement of results Submitted Dec. 12, 1873. Decided Dec. 15, 1873. 213] *only, it still seems to be clear that it is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of any one account. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books. Gratiot v. U. S., 15 Pet., 356, 370; Hoyt v. U. S., 10 How., 109, 132; U. S. v. Eckford, 1 How., 250.

Nor is the objection, that the reports charge Barrett with gross sums and with balances without giving details, sustained by the facts. The reports are made up with much particularity, and give the items on each side of the account. It is not a case of a certificate of balances merely. We are not authorized, however, to regulate the manner in which the departments shall keep their books, or to prescribe the minuteness of the detail. The items in these reports are manifestly made up from statements and details of the daily business furnished by the collector. They are necessarily

[No. 665.]

ERROR to the Supreme Court of the Territory of Colorado.

IN

The case is stated by the court.

See, also, 91 U. S. 495, 23 L. ed. 377.
Mr. J. H. Ashton, for plaintiff in error.

Mr. Justice Swayne delivered the opinion of the court:

This is an application for a writ of supersedeas or an order, to the Supreme Court of Colorado Territory, and to the District Court of the First Judicial District in and for the County of Arapaho, in that Territory, commanding that further proceedings *upon the judgment [*426 in this case be stayed pending the writ of error whereby the judgment was brought into this court for review. The judgment was affirmed by the Supreme Court of the Territory on the 6th of September, 1873. On the 8th of October following, the defendant sued out a writ of error returnable to this court. It was duly served

43

and returned. On the day last mentioned a citation was served on the adverse party, and a supersedeas bond in the sum of $12,000, conditioned and approved according to law, was filed in the proper office. The plaintiffs in error represent in their petition that the defendant in error has applied to the Supreme Court of the Territory for an order that execution issue on the judgment, notwithstanding the writ of error and the supersedeas bond, and that they are apprehensive such an order will be made. Hence this application here.

The 23d section of the Judiciary Act of 1789, 1 Stat. at L., 73, declares "that a writ of error, as aforesaid, shall be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the judgment remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of."

The 2d section of the Act of 1803, 2 Stat. at L., 244, makes appeals "subject to the same rules, regulations and restrictions as are prescribed in law in cases of writs of error."

The 22d section of the Act of 1789 requires "that every justice or judge signing a citation on any writ of error, as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good."

Where the judgment or decree is for money, not otherwise secured, the bond "must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on the appeal." 29th Rule of this court. 427*] And such bond *must be approved and filed within the ten days prescribed for the service of the writ of error. Adams v. Law, 16 How., 144; Hudgins v. Kemp, 18 How., 533, 15 L. ed. 512.

Such was originally the state of the law upon this subject. It frequently subjected parties to great inconvenience and sometimes to serious injury. If the writ were not served and the bond given within ten days from the rendition of the judgment or decree, the defendant, if it were for money, was liable to be compelled to pay, although he might ultimately be victor in the litigation. In such case he would lie out of the use of his money in the meantime, and finally be compelled to take the chance of getting it back, perhaps by further litigation. The facts and the law might be for him and yet the money be lost. If real estate were involved, he was liable to be turned out of possession and to lose all benefit from the property during the same period. It was frequently impossible to serve the writ and give the bond within the ten days, though both might readily have been done if more time were allowed.

The 11th section of the Act of June 1, 1872, 17 Stat. at L., 196, was intended to remedy these evils. That section is as follows:

"That any party or person, desiring to have any judgment, decree or order, of any district or circuit court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor, within sixty days after the rendition of such judgment, decree or order, or afterward, with

| the permission of a justice or judge of the said appellate court."

These provisions are remedial and, therefore, to be construed liberally. So far as there is any conflict with the pre-existing rules, the latter must yield. The intention of the law-maker constitutes the law. U. S. v. Freeman, 3 How., 565. What is clearly implied in a statute is as effectual as what is expressed. U. S. v. Babbit, 1 Black, 61, 17 L. ed. 96. It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment, and *later, with the per- [*428 mission of the designated judge. It is not said when the writ of error shall be served. Its issuance must, of course, precede the execution of the bond; and, as the judge who signs the citation is still required to take the bond, we think it is sufficiently implied that it may be served at any time before, or simultaneously with, the filing of the bond. Indeed, the giving of the bond alone is made the condition of the stay. The section is silent as to the writ. A construction which requires the service to be still within ten days from the rendering of the judgment, is, we think, too narrow. It is sustained by no sufficient reason, and would largely defeat the salutary purposes of the statute. The execution, approval, and filing of the bond are substantial. The filing of the writ is matter of form. Form, under the circumstances, must not be allowed to defeat substance, where the consequences would be of so serious a character. The application of the plaintiffs in error is founded upon this section. As we construe it, their case is within it. The order asked for will be directed to issue, unless this opinion shall render that procedure unnecessary.

Mr. Justice Clifford, dissenting:

Writs of error at common law, when bail was duly entered, operated as a supersedeas, but the 23d section of the Judiciary Act provides that a writ of error shall be a supersedeas and stay execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office within ten days, Sundays exclusive, after rendering the judgment or passing the decree. Such writs, as provided in the preceding section of that Act, may be brought within five years after the judgment is rendered or the decree is passed; and that section also provides that every justice or judge signing a citation on any writ of error, as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he *fail to make his plea good. 1 [*429 Stat. at L., 85. Under that provision this court decided that the security to be taken from the plaintiff in error by the justice or judge signing the citation must be sufficient to secure the whole amount of the judgment. Catlett v. Brodie, 9 Wheat., 553; Stafford v. Bk., 16 How., 140. Where the writ of error is not a supersedeas and does not stay execution the security required and taken by the justice or judge signing the citation shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent. 1 Stat. at L., 404. But where the

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