Nathaniel Cox, Nathaniel and James Dick, Plaintiffs In Error v. the United States, Defendants In Error

• Decision Date: 01 January 1832
• Citation: 6 Pet. 172,31 U.S. 172,8 L.Ed. 359
• Parties: NATHANIEL COX, NATHANIEL AND JAMES DICK, PLAINTIFFS IN ERROR v. THE UNITED STATES, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

31 U.S. 172

6 Pet. 172

8 L.Ed. 359

NATHANIEL COX, NATHANIEL AND JAMES DICK, PLAINTIFFS IN ERROR v. THE UNITED STATES, DEFENDANTS IN ERROR.

January Term, 1832

ERROR to the district court of the United States, for the eastern district of Louisiana.

On the 19th of October 1825, the district attorney of the United States filed, in the district court of the United States for the district of Louisiana, the following petition, and a copy of a bond, on which the case of action stated in the petition was founded.

The petition of the United States, by their attorney, prosecuting within and for said district, respectfully states, that Joseph H. Hawkins, late of New Orleans, nevy agent of the United States, now deceased, John Dick, late of New Orleans, now deceased, and Nathaniel Cox, of the same place, on the 10th day of March in the year of our Lord 1821, were indebted to the United States in the sum of twenty thousand dollars, for the amount of their obligation in writing, sealed with their seals, for the said sum, bearing date the said day and year, and payable, jointly and severally, by them, their heirs, executors and administrators; as will appear by a certified copy thereof hereunto annexed. To which said obligation a condition was annexed, wherein it was provided, that if the said Joseph H. Hawkins should regularly account, when thereunto required, for all public moneys that might be received by him, from time to time, and for all public property committed to his care, with such person or persons, officer or officers of the general government of the United States as should be duly authorised to settle and adjust his accounts; and should moreover pay over, as he might be directed, any sum or sums that might be found due to the United States upon any such settlement or settlements; and should also faithfully discharge, in every respect, the trust reposed in him, then the said obligation should be void, else it should remain in force.

And the United States further state, that the said Joseph H. Hawkins did not, in his lifetime, regularly account, as aforesaid, for all public moneys received by him, from time to time, and for all public property committed to his care; and did not pay over, as aforesaid, any sum or sums of money due to the United States as aforesaid; and did not faithfully discharge, in every respect, the trust reposed in him, as aforesaid; but did, at his death, remain indebted to the United States in a large balance of money, to wit, the sum of fiteen thousand five hundred and fifty-three dollars eighteen cents, for moneys, from time to time, since the date of the said obligation, received from the United States, as navy agent as aforesaid: by reason of all which, the condition of the said obligation hath become broken, and the said debt become due; wherefore they pray process of summons against the legal representatives of the said Joseph H. Hawkins, deceased, and of the said John Dick, deceased, and against the said Nathaniel Cox; and after due proceedings had, that judgment may be rendered against them for the said debt, with interest and costs.

J. W. SMITH, Attorney U. S.

Copy of bond annexed to the petition.—Know all men by these presents, that we, Joseph H. Hawkins, as principal, and John Dick and Nathaniel Cox, as securities, are held and firmly bound unto the United States of America, in the sum of twenty thousand dollars, current money of the United States, to be paid to the said United States, for which payment, well and truly to be made and done, we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, in the whole and for the whole, jointly and severally, firmly by these presents. Sealed with our seals, and dated this tenth day of March, Anno Domini 1821.

The condition of the above obligation is such, that if the above bonded Joseph H. Hawkins shall regularly account, when thereunto required, for all public moneys received by him, from time to time, and for all public property committed to his care, with such person or persons, officer or officers, of the government of the United States, as shall be duly authorised to settle and adjust his accounts, and shall, moreover, pay over, as he may be directed, any sum or sums that may be found due to the United States upon any such settlement or settlements, and shall also faithfully discharge, in every respect, the trust reposed in him, then the above obligation to be void and of no effect, otherwise to remain in full force and virtue.

The bond was duly executed by the obligors, and then approved by the district attorney of the United States for the Louisiana district. The copy was regularly certified from the navy department.

Citations were issued from the office of the clerk of the court on the 20th October 1827, &c. to 'the legal representatives of J. H. Hawkins, deceased,' 'the legal representatives of John Dick, deceased,' 'and to Nathaniel Cox;' to appear and answer, &c. The marshal returned non est inventus as to the legal representatives of J. H. Hawkins,' and 'served on the legal representatives of John Dick, deceased,' and on 'Nathaniel Cox.' The separate answer of Nathaniel Cox, filed on the 11th of December 1825, stated, that he did sign the bond sued upon as surety of the late J. H. Hawkins, navy agent; but he denies that the sum of $15,553 18 is due by the sureties, as stated in the petition, but only $12,682 46; for this, that since the decease of the said J. H. Hawkins, he has paid on his account, and been allowed in credits at the treasury of the United States, the sum of $7,317 54, deducting which from the amount of said bond, $20,000, leaves the aforesaid sum of twelve thousand six hundred and eighty-two dollars forty-six cents.

And that, as between himself and his co-surety, he is entitled to a credit for this sum, $7,317 54, deducting which from the amount of $10,000, or one half the penalty of said bond, there will remain due by him the sum of $2,682 46, and by his co-surety the remainder of the sum, viz. $10,000, which apportionment he prayed may be made and allowed to him as against his co-surety, with all other and further relief which he may be entitled to.

On the 27th February 1828, on motion of the district attorney, and on giving the court to understand that Mrs Todd, a surviving sister, and one of the heirs of John Dick, deceased, resided out of the district, in the state of Virginia, the court ordered that Levi Peirce, Esq., attorney of Nathaniel and John Dick, two of the heirs of John Dick, deceased, be appointed curator, ad hoc, of Mrs Todd herein.

On the 3d March 1820, Nathaniel Cox filed a supplemental answer, representing that the succession of his co-security, John Dick, was solvent, and able to pay the debt claimed. He demanded that the United States divide their action, reducing their demand to the amount of the share and proportion due by each surety.

On the 20th May 1828, Nathaniel and James Dick filed their answer to the petition of the United States; that no amicable demand has been made according to law, and that they are, therefore, not bound for any expenses of this suit; and they further answer, that they are two of three heirs of J. Dick, who have accepted the succession of said J. Dick, with benefit of inventory; the third heir being Sarah Dick, wife of J. Todd, of the state of Virginia, citizen: and that, therefore, they are in no event bound for more than two-thirds of any debt of said J. Dick; that the debt now claimed, they deny is in any manner due by the estate of John Dick, but should the same be proved, they say that they have not received more than four thousand dollars of the estate of J. Dick, and are liable for no more than two thousand dollars each, of which they pray judgment and trial by jury; and that they may be dismissed with, &c.

The court, on the 19th December 1829, on the plea of Nathaniel Cox for a division of the action, overruled the same.

The cause came on for trial before a jury on the 2d January 1830, when a 'verdict for plaintiffs for twenty thousand dollars, being the amount of the bond,' was rendered.

Bills of exceptions were tendered, and sealed by the court on the trial; which stated, that 'Nathaniel Cox offered to prove, under the prayer of his answer, that his co-surety should be decreed to contribute in payment, according to their respective shares; that certain payments had been made in diminution of the balance of said Hawkins, since his death, and before the date of the transcript, produced in evidence by the district attorney, by the said Cox; and for this purpose, offered in evidence a certain transcript from the treasury books, duly certified; the introduction of said testimony was opposed by the counsel for the heirs of John Dick, his co-surety; on the ground that in this suit there could be no examination of the rights of the sureties as between themselves; which objection being sustained by the court, the testimony was rejected.'

And 'that Nathaniel Cox also offered in evidence another transcript from the books of the treasury, duly authenticated, purporting to be a list of payments made and receipts taken, and passed at the treasury of the United States, in the name of said Joseph H. Hawkins, since the 30th September 1823, (it having been previously shown that the said Hawkins died on the first of October 1823) in support of the allegations in his answer, that he had paid the sum of $7,317 54, since the decease of said Hawkins, in his capacity of surety; the introduction of said testimony was opposed by the attorney of the United States, on the ground that no credits could be allowed but such as had been presented at the treasury, and refused; which objection being sustained by the court, the evidence was refused; and the same defendant having further offered in evidence the account of said Joseph H. Hawkins, as navy agent, with the Bank of the United States, in this city, during the months...