Harvey v. United States

• Decision Date: 09 October 1899
• Docket Number: 474.
• Parties: HARVEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F. 452

HARVEY v. UNITED STATES.

No. 474.

United States Court of Appeals, Ninth Circuit.

October 9, 1899

White &amp Monroe, for plaintiff in error.

F. P Flint, for the United States.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

By this action, which was commenced in the court below on the 1st day of September, 1892, the United States sought to recover upon the official bond of one Edward Hunter, given as United States marshal for the Southern district of California. The bond was executed and approved on the 23d day of May, 1855 in the penal sum of $20,000, for the faithful performance of the official duties of the principal obligor. B. D. Wilson and John G. Downey were the sureties on the bond, and the action as brought was against them as well as the principal Hunter. It is alleged in the complaint among other things, that Hunter was the marshal of the United States in and for the Southern district of California from and including the 23d day of May, 1855, to and including the 4th day of August, 1858, during which time he received into his possession and custody as such marshal sundry large sums of money belonging to the United States, appropriated from its treasury for the expenses of the courts of the United States, and part of which was not disbursed or returned to the United States as required by law; that the official accounts of Hunter as such marshal were at various and stated times prior to September 13, 1859, adjusted by the treasury department of the United States in conformity with the laws and the rules and regulations of the department, and that on the day last mentioned, to wit, September 13, 1859, it was ascertained by the treasury department that there was then due from the said Hunter to the United States, on account of the moneys received by him in his official capacity as marshal, the sum of $7,614.02, which he failed and refused to pay over, by reason of which alleged breach the government asked for judgment on the bond against the defendants in the suit for the said sum of $7,614.02, together with the further sum of $66.29, alleged forfeited commissions theretofore allowed the said Hunter, with interest on the first-named sum from December 4, 1855. Although Hunter and Wilson were both made parties defendant to the suit, it was stipulated at the trial that each of them died long prior to its institution. Downey, however, was then alive, and service of summons was made upon him. He appeared in the action, and answered the complaint. Subsequently he died, and on July 26, 1895, letters of administration on his estate were issued to J. Downey Harvey, who is the plaintiff in error here. Upon the subsequent discovery of the last will and testament of John G. Downey, the plaintiff in error became administrator of his estate, with the will annexed. The original answer of Downey admitted the execution of the bond sued on, but denied the alleged indebtedness, and the alleged failure on the part of the principal in the bond to pay over any public moneys that came into his hands as required by law, and also alleged that the co-surety, B. D. Wilson, died testate in the county of Los Angeles, state of California, on the 11th day of March, 1878, and that on the 1st day of April, 1878, his last will and testament was regularly admitted to probate by the probate court of that county, and that letters testamentary were on April 3d of the same year duly issued to his executors; that at that time, and during all the times involved in this action, the laws of California required every executor and administrator, immediately after his appointment, to cause to be published in some newspaper of the county, if there be one, and, if not, then in such newspaper as may be designated by the probate court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator at his place of residence or business, to be specified in the notice, with certain other provisions not necessary to be stated, and also declared that 'no holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator,' with an exception not pertinent to the present case; that the executors of the estate of the said Wilson duly gave the notice to creditors required by the laws of California, and that no claim was ever presented against the said estate by the United States by reason of the bond sued on, and that the defendant Downey had no notice of any claim upon the part of the government of the United States, and no knowledge that any such claim would or could be made, until more than 10 years after the expiration of the time within which claims might have been presented against the said estate of the said Wilson; that at the time of the death of the said Wilson, and for more than 20 years prior thereto, he was entirely solvent, and fully able to meet any liability growing out of the bond sued on; that the plaintiff, without the consent of the defendant, Downey, released the said Wilson and his estate from all obligation upon the bond sued upon, and thereby exonerated the defendant Downey. By supplemental answer the plaintiff in error, as administrator with the will annexed of the estate of John G. Downey, deceased, set forth the giving of notice to the creditors of the estate of Downey in accordance with the laws of the state of California, and the failure of the United States to comply with the statutes of that state regarding the presentation of claims against the deceased. Notice to the creditors of the estate of Downey was published March 20, 1894. No claim was ever presented by the defendant in error to the administrator or the administrator with the will annexed of that estate. The estate of B. D. Wilson was settled and distributed March 14, 1893. The only proof of any defalcation on the part of Hunter is found in a document from the treasury department of the United States, which was stipulated by the respective parties at the trial to be a correct transcript of the entries referred to, from which it appears that on September 8, 1859, the first auditor of the treasury certified that there was then a balance due from Hunter, as late marshal for the Southern district of California, to the United States, of $7,680.31, as appeared from the statement and vouchers which he therewith transmitted for the decision of the comptroller of the treasury thereon, and that on the 13th day of September, 1859, the comptroller admitted and certified that balance. The items of the account and vouchers, however, upon which these certificates were based, were introduced in evidence in connection with and as a part of them; and from them it appears that for no part of Hunter's incumbency of the office of marshal do they purport to be a full statement of the items of his account, and do not purport to cover a single item of his account as such officer subsequent to the December, 1856, term of the court, whereas he continued to be marshal until the 4th of August, 1858,-- nearly two years longer. Moreover, it appears from the fragmentary and incomplete accounts appearing in the certified transcript that many of the items for which the marshal claimed credit were not actually rejected by the treasury officials, but merely suspended. The first two of these suspended items aggregate $3,112.95. They are:

Vou. No. 1. Amt. paid Ira Gilchrist for repairs of court room, susp's for want of authority from the sec. of the interior $500.00.

Vou. No. 4. Amt. paid Sanford & Carson for books, stationery, and furniture. There is no authority for the purchase of the furniture from the interior department. Before an allowance can be made for books and stationery, the items must be specifically detailed. Suspended $2,612.95.

There are other suspended items of considerable amounts, to wit, one of $150, another of $112, another of $233.40, and various others of smaller amounts. Whether these suspended items were allowed during the remainder of Hunter's term of office, extending nearly two years, in no way appears from the record. The certified transcript introduced in evidence does not pretend to embrace any of his accounts for that period of time. On such a fragmentary and incomplete statement of account, for only a portion of the term of office of the principal obligor, for whose faithful performance of duties the sureties obligated themselves, judgment was entered in the court below in favor of the plaintiff and against the surviving surety for $7,680.31, with interest thereon at the rate of 6 per cent. per annum from December 4, 1865, on the sum of $7,614.02, making the total amount of the judgment $27,155.70, with legal interest thereon from the date of judgment, and with costs of suit.

No one denies that the transcript from the books and proceedings of the treasury department is competent evidence. The statute makes it evidence; that is to say, prima facie evidence. Rev. St. Sec. 866; Bruce v. U.S., 17 How. 437, 439; Smith v. U.S., 5 Pet. 300; U.S. v. Pinson, 102 U.S. 548; Moses v. U.S., 166 U.S. 597, 17 Sup.Ct. 682. But the transcript from the books and proceedings of the treasury department so made evidence is, as declared by Chief Justice Taney in Bruce v. U.S., supra, 'a copy of the entire account as it stands on the books (which must include debits as well as credits). ' In U.S. v. Gaussen, 19 Wall. 198, 211, the court, in speaking of a similar provision of the act of March 3, 1797 (1 Stat. 512), said:

'A transcript or a transcribing a 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

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