The United States, Plaintiffs In Error v. Gordon Boyd and Others, Defendants

• Decision Date: 01 January 1847
• Citation: 12 L.Ed. 36,46 U.S. 29,5 How. 29
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR, v. GORDON D. BOYD AND OTHERS, DEFENDANTS
• Court: U.S. Supreme Court

46 U.S. 29

5 How. 29

12 L.Ed. 36

THE UNITED STATES, PLAINTIFFS IN ERROR, v. GORDON D. BOYD AND OTHERS, DEFENDANTS.

January Term, 1847

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi. It was formerly before the court, and reported in 15 Pet., 187.

The following statement of the case was made out by Mr. Justice Nelson, and prefixed to the opinion of the court.

The plaintiffs brought an action of debt against the defendants in the court below, upon a receiver's bond, in the district of Mississippi, for defalcation in office, and in which the latter obtained the verdict.

The declaration was in the usual form for the penalty, to which several of the defendants, after craving oyer, pleaded performance. The bond bore date the 15th June, 1837, in the penalty of $200,000, and after reciting that Boyd had been appointed receiver for the term of four years from the 27th December, 1836, the condition was, that he should faithfully execute and discharge the duties of the office.

The plaintiffs in their replication assigned for breach, that after the 27th December, 1836, and while he was receiver, and as such, the said Boyd received divers large sums of the public moneys, amounting to the sum of $59,622.60, and which he had failed and neglected to pay over to the government.

To this replication the defendants demurred, and therefore the plaintiffs put in an amended replication; and in which a second breach was assigned, alleging that the said Boyd, after 27th December, 1836, and on divers days and times between that day and the 30th day of December, 1837, while he was receiver of the public moneys, and as such, received divers large sums of the public moneys, amounting in the whole to the sum of $59,622.60; and

further, that this sum remained in the hands of the said Boyd, as such receiver, on the 30th September, 1837, and that he then and there wholly failed and neglected to pay over the same.

To this amended replication the defendants demurred, and assigned for causes,——

1. That the breaches set forth did not state the time when the said Boyd, as such receiver, received the moneys mentioned therein; nor whether the said sum was received before or after the day of the date of the bond.

2. That the said breaches did not state that the said Boyd failed or neglected to pay over the money received by him as such receiver, at any time after the date of the bond.

The plaintiffs joined a demurrer; and the court below gave judgment for the defendants. The cause came up to this court on a writ of error, upon which the judgment was reversed, and the case remanded for further proceedings.

When the cause came back to the court below, Boyd, after craving oyer, pleaded separately performance, and to the replication assigning breaches he rejoined, setting forth a former recovery in assumpsit in bar of the action against him,—to which the plaintiff answered, nul tiel record. This issue being found for the defendant, he was discharged without day.

The other defendants then put in a rejoinder to the amended replication of the plaintiffs, and alleged that the said Boyd did not, as a receiver, receive any public moneys at the time of the execution of said bond, or at any time thereafter, and before the commencement of the suit; and that no public moneys of the United States for the payment of which the defendants were chargeable by virtue of their bond remained in the hands of the said Boyd, as such receiver, at the time of the execution of the bond, or at any time thereafter and before the commencement of the suit, which the said Boyd had failed or neglected to pay over to the government.

To this rejoinder the plaintiffs demurred, and the defendants joined in the demurrer. The court below gave judgment for the plaintiffs, but allowed the defendants to amend, which was done accordingly; and in the amended rejoinder they aver, that no public moneys of the United States came to the hands of the said Boyd, as such receiver, after the execution of the said bond, nor were there any such public moneys for the payment of which the defendants were chargeable by virtue of the said bond, received by him prior to the execution of the same, remaining in the hands of said receiver in his official capacity at the time of the execution of said bond, or at any time thereafter, which had not been paid or accounted for according to law, before the commencement of the suit, upon which issue was taken.

On the trial the plaintiffs gave in evidence two treasury transcripts, one dated Feb. 27, 1838, adjusting a balance against Boyd, as

receiver, of $59,622.60, due to the government on the 30th Sept., 1837, the other dated Sept. 17, 1838, adjusting a like balance against him of that date.

The plaintiffs also gave in evidence the returns of Boyd, as such receiver, to the treasury department, containing the account current as kept by him with the government, covering a period from Dec. 31, 1836, to Sept. 25, 1837; and which agreed substantially with the balance due, as shown by the treasury transcripts. They were made monthly to the department.

Upon this the plaintiffs rested.

The defendants then proved, that no lands had been entered or sold at the office of the registers, at Columbus, or receiver's certificates issued by the receiver (Boyd), after the 29th of May, 1837. The last tract of land sold was entered on that day. This was proved by the register and confirmed by the records on file in the land-office.

It was further proved, that while the sales of the public lands were going on at Columbus, and in the month of January or February, 1837, Boyd permitted one Pearle to enter lands to the amount of some $12,000 or $15,000, without paying any money for the same, taking only his checks upon the Planters' Bank in the vicinity, which were uniformly dishonored as soon as presented for payment.

It further appeared, that Boyd himself, while such receiver, and before the execution of the bond in question, made entries in his own name, and in the name of others for his benefit, of a large quantity of the public lands at the register's office, and gave the usual certificates for that purpose, without paying for the same, except by simply charging himself in his accounts with the receipt of so much money.

In the course of the trial evidence was given that a person by the name of Garesche appeared at Columbus, in May, 1837, claiming to be an agent from the land-office department authorized to examine the books and accounts of certain land-offices, of which that at Columbus was one; he produced a letter from the department of his appointment, which was recognized as genuine, and thereupon the offices of the register and receiver were examined. The defalcation of Boyd was discovered by the agent, who communicated it to the register, but enjoined secrecy.

The counsel for the plaintiffs objected to the competency of the evidence offered to prove the agency of Garesche, but the objection was overruled, and the decision of the court excepted to.

The defendants then offered Boyd, the receiver, as a witness, and with a view to remove all objections, on the ground of interest, releases were executed from them to him, discharging him from all liability in case a judgment should be rendered against them. They also produced a certificate of the clerk, stating that an amount of money had been deposited in court by Cocke, one of the defendants, to cover all costs, and also a release by the said Cocke to the other defendants, discharging them from contribution.

The witness was still objected to, but admitted; to which decision the counsel for the plaintiffs excepted.

In the course of the examination of this witness, an objection was taken to his testimony going to prove, that he had no moneys in his hands belonging to the United States at the date of the bond, on the ground, it would be in contradiction of the statements contained in his official returns to the treasury department. The objection was overruled and the testimony admitted; to which decision the counsel excepted.

The witness testified that he had no money in his lands, as receiver, or otherwise, in court for the United States, at the date of the bond; and that he had so informed Garesche, the agent, before the execution of the same; and that after the execution he had paid over all moneys which he had received.

The testimony here closed, and the counsel for the plaintiffs prayed the court to instruct the jury,——

1. That the official returns of the receiver to the treasury department were conclusive against the sureties.

2. That there was no sufficient legal evidence before the jury of the agency of Garesche.

3. That fraud could not be imputed to the United States.

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 had been made unlawful without payment, then the sureties were not liable.

2. That the facts stated in the transcripts to the returns made by Boyd, of moneys on hand, were not comclusive 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...