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.

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

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.

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 sureties were not liable.

The court charged the jury, that the evidence on the part of the plaintiffs 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.

The court further charged the jury, that if they believed from the evidence that a fraudulent design existed, on the part of 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 the Treasury, and his answer received before the actual execution 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


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

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 a 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.


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 of agency submitted in establishing a fraudulent 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.

II. After the decisions of this court in the cases of Linn v. The United States, 15 Peters, 290, Ferrar & Brown v. United States, 5 Peters, 373, and The United States v. Boyd, 15 Peters, 187, I do not feel at liberty to argue that the official accounts of the receiver are conclusive against his securities, or that they are responsible 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. Boyd, 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

not such a misconduct as to vacate the sale, unless the United States insists that it is no sale.

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.

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."

to sustain the action. If we shall find that they are not, then the court cannot legitimately 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 offi cers of the department. United States v. Jones, 8 Peters, 375.

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


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 payment 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 information of the plaintiffs' demand, and to enable the defendants to defend themselves 2. Because there was no proof before the against any illegal or unjust charge; for exjury of Garesche's agency, or of the scope of ample, if the item were for the sale of a cerhis 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 gross, or certified statements of money quarter 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 secretary'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.

By law the receiver is to execute bond, with approved security. The duty of approving cannot be delegated to an agent; and as no agency can exist but to do a lawful act, the ministerial duty of seeing the bond executed, and transmitting 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

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 with his declaration an account stating distinctly the several items of his claim against the defendant, and in failure thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly 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 attention of the court is an *authenticated [*38 abstract of lands purchased by Gordon D. Boyd

and others, previous to his being appointed re- | legal estoppel, or whether, allowing them to be ceiver.

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 assigned 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.

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 sureties 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 sureties, 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, but arranges the items of debts and credits, so as to exhibit the transactions of the collector during the four years in question. Whether this be done by depositions or in the form of the transcript may not be material. We think that the transcript or restatement of the account as explained by the depositions was competent evidence to the jury. This statement, as appears from deposition of Tarbutt, is deficient in not giving all the credits to which the collector was entitled, but as it relates to the matter in controversy it is evidence. The jury will determine what effect it shall have; the amount charged to the collector at the commencement of the term is only prima facie evi

wise, 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.”

The remaining balance of the plaintiffs' testimony is certain certified money accounts of the United States with Gordon D. Boyd, receiver of public moneys. These purport to be the quarterly statements of Boyd, of moneys remaining on hand from quarter to quarter, and stand obnoxious to the objections we have before considered. First, that they are not accompanied with transcripts from the books and proceedings of the treasury, showing the items which constitute the accounts in gross. Second, that the lands sold for which the balance is supposed to be created are not stated; and Third, that the sureties should not thereby be denied all opportunity of defending themselves, even by showing that the lands were not sub-dence against the sureties. ject to sale, that the title thereto yet remained "If they can show, by circumstance or otherwith 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 It was, in the case here referred to, contendother witnesses for the defendants. The plain-ed that the duty of the treasury officers in settiffs here rested their cause. The defendants, tling these kind of accounts were in their nain their defense, offered the testimony of the ture judicial and conclusive, but the court did witnesses, William Dowsing, John Davies, John not sustain such views; on the contrary, reD. Montgomery, William B. Winston, Robert garded them as prima facie only, and subject to E. Harris, and the said Gordon D. Boyd. 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 plaintiff'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:

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 sureties. 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 matters 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

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

truly paid by him into the treasury before the | bond he had fully informed V.,M. Garesche, commencement of this suit.

2d. That the balance claimed by the United States arose from returns made by him of false and illegal entries of public lands in his own name and in the names of others, prior to the execution of the bond, and that on such entries no moneys were in fact paid to said receiver or in his hands before or after the execution of the bond; that such entries were unlawful, were nullities, and passed no title out of the government.

3d. That if any balance of moneys received by Boyd was received by him before the execution of the bond, that none such was held by him in trust for the government at or after the execution of the bond, but had been used, wasted or converted to his own use prior to the execution of the said bond, and,

4th. That the fact of Boyd's supposed defalcation existed prior to the date of the bond, and was known to V. M. Garesche, the agent of the government, who was bound in morals and in law to have the same known to the sureties, but who concealed such knowledge and enjoined official secrecy in fraud of the sureties. That the said bond was obtained from the sureties by fraud, and no liability exists against them on the bond.

As to the first point, it will be borne in mind that the bond is prospective both in its terms and legal effect, and that it is dated on the 15th of June, 1837. It will be seen by reference to the testimony of William Dowsing, the register of the same land office, that the first entry that purports to have been made before Boyd, as receiver, was on the second day of December, 1836, and that the entries closed on the 29th of May, 1837; both of these periods were before the date of the bond. According, then, to the opinion of the court made in this case on the former adjudication, the sureties are not liable, unless such public moneys remained on hand at and after the date of the bond.

The testimony of all the witnesses, William Dowsing, John Davies, John D. Montgomery, William B. Winston, and Robert E. Harris, conduce to show that Boyd made his deposits of public moneys, as they accrued, in the office of the Planters' Bank, at Columbus, where he ought to have made them. By reference to exhibit A, part of the deposition of William B. Winston, it will be seen that the deposits were so made by him, and on comparing them with the statement of moneys paid by Boyd to 41*] the government, it is shown that he well and truly paid over to the plaintiffs all the public moneys actually received by him, and that at or after the date of the bond no such moneys remained in his hands.

The testimony of these witnesses certainly conduced to show this, and the jury having found the issue for the defendants, the court would not be authorized to disturb the verdict. This is so without regard to the testimony of Boyd, but if the testimony of Boyd be competent it is a full defense to the defendants, and is conclusive of the issue in behalf of the defendants. He testifies that at the date of said bond he had no moneys in his hands, as receiver, and did not otherwise hold any moneys at that time for the United States or in trust for them; that before the execution of said

the agent of the Land Office Department, that he had no such moneys in his possession; and being further interrogated, he stated that his default, as receiver, was complete and consummated before the execution of said bond, and that after the execution of said bond he did not receive any such moneys not paid over.

If his testimony be competent, its weight and credibility were alone for the province of the jury; they having believed him, and having found their verdict for the defendants, there is no rule by which this court on error would be authorized to disturb the verdict.

We entertain no doubt of the competency of his testimony. He had been previously prosecuted at the suit of the United States in a distinct and separate proceeding for the identical same cause of action, and the United States had obtained a judgment against him on the 15th of June, 1838, for the sum of $53,722.50. These proceedings he relied upon as a bar to the plaintiffs' right to have another judgment against him for the same cause on the bond; nul tiel record was relied upon by the plaintiffs, but it was found that there was no such record; and as it was not thought regular for the plaintiffs to have two operative judgments against the same person for the same cause at the same time, Boyd was discharged from the second action and had no further connection with it. But he was principal in the bond and the other defendants his sureties only.

Before he was allowed to testify, the defendants, on behalf of whom he did testify, were required to release him, his heirs, executors, and administrators, from all claims against him for any money or other thing which he might be liable to them or either of them by reason of any recovery or judgment that might be had against them or either of them, and also all costs incurred or to be incurred by reason of any suit upon the bond, after the discharge mentioned; by these releases the said Boyd was rendered a competent witness for the sureties, who thus released him, and was correctly permitted to testify. United States v. Leffler, 11 Wheaton, 86. But whence, it may be asked, arose his supposed defalcation? IVe answer, by his having issued certificates for land before the date of the bond in his own name and in the name of others without having received the purchase money therefor. See the [*42 testimony of William Dowsing, Jolin Davies, John D. Montgomery, and Robert E. Harris, in the printed record. If this be so, allow us here, secondly, to say that whatever may be the nature of the liability of Boyd or his sureties for malfeasance in office, for and on account of these certificates, this proceeding for money received and on hand at and after the date of the bond cannot be supported. In this respect the jury having found for the defendants, this court would not be authorized to disturb the verdict.

We do not think that the United States can be deprived of any portion of the public domain by such false certificates. The Act of Congress of the 24th of April, 1820, changing the mode of the disposition of the public lands from the credit to the cash system, provides that "credit shall not be allowed for the purchase money on the sale of any public lands

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."

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 John Davies says: "Sometime in the spring balance of the land in his land district; and if or summer of 1837, the general government he could be permitted to do so, all other re-sent an agent, named V. M. Garesche, for the ceivers of public moneys could do the same in purpose of examining into the condition of the their several land districts, and thus the title land offices." Robert E. Harris says, that "In of the whole public domain could pass out of the latter part of the spring or the first of the the government without the payment of a dol- summer of 1837, a settlement took place in the lar. The principle or practice that shall thus land office, between Col. Boyd, and a man by deprive the United States of her public lands the name of Garesche, as agent of the governcannot be sound or be supported by this court. ment, in reference to such defalcation. He had If, indeed, it be true that the supposed defal- no other knowledge of the agency of Garesche, cation of Boyd arose before the date of the or his authority as such, except that he was bond, and from his having issued certificates recognized and regarded by the register and.refor the public lands in his own name and in ceiver of the land office at Columbus as such the name of others without receiving payment agent, and who settled with him as such." of the purchase money therefor-and it is This we have thought sufficient. 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 thę 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

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