Abner Duncan v. United States

• Citation: 32 U.S. 435,8 L.Ed. 739,7 Pet. 435
• Parties: ABNER L. DUNCAN'S Heirs and Representatives, Plaintiffs in error, v. UNITED STATES
• Decision Date: 01 January 1833
• Court: United States Supreme Court

32 U.S. 435

7 Pet. 435

8 L.Ed. 739

ABNER L. DUNCAN'S Heirs and Representatives, Plaintiffs in error, v. UNITED STATES.

January Term, 1833

ERROR to the District Court for the Eastern District of Louisiana. On the 22d November 1829, the district-attorney of the United States filed, on behalf of the United States, a petition, stating, that on the 4th of March 1807, William Carson, Abner L. Duncan and John Carson made and executed their bond to the United States, in the sum of $10,000, by which they bound themselves, and each of them, and either of their heirs, executors and administrators, that William Carson, paymaster of the United States, should well and truly perform and discharge, according to law, the duties of the office of paymaster of the United States, within the district of New Orleans. The petition alleged a breach of this bond by William Carson, paymaster, in having received, in his lifetime, large sums of money in that capacity, which he refused to pay into the treasury of the United States. And also that Abner L. Duncan had died, leaving property, and that by reason of the facts above stated, his heirs, to wit, John N. Duncan Frances Duncan, wife of Frederic Conrad, Hannah Duncan, Elizah Duncan and Abner Duncan, all children of the said Abner L. Duncan, these last three named being minors, and also Frances S. Duncan, wife of the said Abner L. Duncan, who had accepted the community of her deceased husband, had become liable to pay, and were indebted to the United States, jointly and severally, in the sum of $10,000. The petition proceeded to pray, that John N. Duncan and Frances S. Duncan, and the aforesaid minors Hannah, Eliza and Abner Duncan, their tutors and curators, be cited to answer the petition, and that, after due proceedings had, they might have judgment against them, jointly and severally, for the sum of $10,000, with interest and costs. To this petition was annexed a copy of the bond, as follows:

'Know all men, by these presents, that we, William Carson, paymaster for the United States of America, within the district of New Orleans, Abner L. Duncan, John Carson and Thomas Duncan, Esquires, are held and firmly bound unto the said United States, in the penal sum of ten thousand dollars, money of the United States, to be paid to the said United States of America, for which payment well and truly to be made, we bind ourselves, and each of us, by himself, our and either of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this fourth day of March 1807. The condition of this obligation is such, that if the above-bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform and discharge the duties of said office of paymaster for the United States of America, within the district of Orleans, then the above obligation to be null and void, otherwise to remain in full force and virtue.

WILLIAM CARSON, [SCROLL.]

A. L. DUNCAN, [SCROLL.]

JOHN CARSON.' [SCROLL.]

The bond was acknowledged by William Carson and Abner L. Duncan, before a notary-public in New Orleans, on the 4th day of March 1807, and by John Carson, before a notary-public at Harrisburg, Pennsylvania, on the 21st day of May 1807. The copy of the bond was certified according to the provisions of the act of congress of 3d of March 1817, entitled 'an act providing for the prompt settlement of accounts.'

To the petition of the United States, the heirs and representatives of Abner L. Duncan, filed an answer, on the 14th day of December 1829, in which all the allegations in the petition were denied, except that Abner L. Duncan did sign the bond therein referred to; but they averred that said Duncan was not, in his lifetime, nor were the respondents, bound in law to pay the amount thereof, or any part thereof. They further averred, that by and in said bond, it was stipulated and understood (when the same was signed by the said Abner L. Duncan, as surety for said Carson), that one Thomas Duncan should also sign the same, as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was the said Abner L. Duncan ever bound thereby.

Afterwards, on the 26th of May 1830, an amended answer was filed, stating that the respondents were not liable for the alleged defalcation in the accounts of the said Carson, because said Carson acted as paymaster out of the limits of the district of Louisiana, and the said deficiencies, if any existed, occurred without the limits of said district.

The cause came on for trial, upon these pleadings, on the 29th day of May 1830; and before the jury were sworn, the counsel for the defendants offered to the court a statement of the facts, for the purpose of obtaining a special verdict on the facts, under the tenth section of the act of the legislature of the state of Louisiana of 1817, page 32. This being opposed by the district-attorney, the court refused to admit the same, or to suffer the same to be given to the jury for a special finding, 'because such was contrary to the practice of this court; and because a jury ought not to be compelled to find a special verdict.' Whereupon, the counsel for the defendants excepted to the opinion and decision of the court therein, before the jury were sworn.

On the trial of the cause, a transcript from the treasury department of the accounts of William Carson, as paymaster was given in evidence, showing a balance due to the United States, of $6126.11, for which sum a verdict was given, and a judgment thereon rendered, in favor of the United States. On the trial, the defendants took the following bill of exceptions:

'Be it remembered, that on the trial of this cause, the judge charged the jury, that the bond sued on was not to be governed by the laws of Louisiana, or those in force in the territory of Orleans, at the time said bond was signed by Abner L. Duncan, who signed it in New Orleans, in the then said territory; but that this, and all similar bonds, must be considered as having been executed at the seat of government of the United States, and to be governed by the principles of a common law, to wit, the common law of England. The judge further charged the jury, that, although the copy of the bond sued on exhibited a scroll instead of a seal, yet they had a right to presume, that the original bond had been executed according to law, to wit, that it was sealed in the manner prescribed by the common law; that the scroll in the copy represented the place of the seal, as plainly as could be done without a fac-simile; and that if the fact was otherwise, it was in the power of the defendants to have shown it. The judge also charged the jury, that they were bound to presume, in the absence of all proof as to the limits of the district of Orleans, that the deficiency in the accounts of Carson (hereunto annexed), the principal obligor on said bond, occurred on account of moneys received and disbursed as paymaster of the district of Orleans, although it was proved that side Carson had acted as paymaster, and disbursed moneys, as such, at Fort Stoddart, and at the town of Washington, both in the then territory of Mississippi; and finally, that if said Carson disbursed money in any other district than that Orleans, it was incumbent on the defendants to prove that fact. The judge further charged, that the possession of the bond by the treasury department, was prim a facie evidence of delivery. To all of which charges, the counsel for the defendants then and there excepted, before the jury retired to consider their verdict.'

The defendants prosecuted a writ of error to this court; and the record presented the bill of exceptions to the ruling of the district court, as to the claim to have a special verdict, and the matters which the defendants' counsel offered for the jury to find as such; and also the bill of exceptions sealed by the court on the trial of the cause.

The case came on for argument, at the January term of this court in 1832, and was held under advisement. It was in part re-argued at this term.

C. J. Ingersoll, for the plaintiffs in error, contended:—1. It was an error in the court below to reject the practice of the state and substitute the common law of England. The practice of the state was established by the act of 1817, adopted and made the law of the court of the United States by the act of congress of the 26th of May 1824. (4 U. S. Stat. 62.) The case of Parsons v. Bedford, 3 Pet. 445, settles the principle. The cases of Parsons v. Armor, Ibid. 413, and Parsons v. Bedford, before cited, settle everything but the mere application of their principles to any given circumstance; and it is clear, that the district court of Louisiana has established no practice of its own; which, if so, must appear judicially and declaratorily. It is true, that the act of Louisiana of 1817 was repealed by the act of 1825, establishing a different code of practice. Which practice then is to prevail? that of 1817 or that of 1825? Certainly, the former, because that was sanctioned by the act of congress of 1824; and when state practice is once adopted by a federal court, it never fluctuates according to the practice or legislation of the state, but remains fixed, till changed by the rule of the federal court, or by act of congress. It is the same case in principle, as that of the old states under the judiciary act of 1789: they took the state practice, as existing then, and have never followed any state change since. Wayman v. Southard, 10 Wheat. 1. The power of regulating process in the federal courts is exclusively federal; it abides in congress, until by them delegated, so far as necessary, to the federal courts. The 2d section of the act of congress of the 8th of May 1792 (1 U. S. Stat. 276), enacts, that the modes of proceeding shall be the same as were then used pursuant to the act of 1789. Infinite confusion...