The United States, Plaintiffs In Error v. Thomas Gibbes Morgan, Thomas Chinn, Micajah Representatives of John Davenport, Deceased

• Decision Date: 01 December 1850
• Citation: 11 How. 154,52 U.S. 154,13 L.Ed. 643
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR, v. THOMAS GIBBES MORGAN, THOMAS W. CHINN, MICAJAH REPRESENTATIVES OF JOHN DAVENPORT, DECEASED
• Court: U.S. Supreme Court

52 U.S. 154

11 How. 154

13 L.Ed. 643

THE UNITED STATES, PLAINTIFFS IN ERROR, v. THOMAS GIBBES MORGAN, THOMAS W. CHINN, MICAJAH

COURTNEY, JOSIAH BARKER, AND THE HEIRS AND LEGAL

REPRESENTATIVES OF JOHN DAVENPORT, DECEASED.

December Term, 1850

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.

It was a suit brought upon a collector's bond against Thomas Gibbes Morgan, the principal, and Thomas W. Chinn, Micajah Courtney, Josiah Barker, and John Davenport, sureties. The bond was executed on the 14th of December, 1841, and recited that Morgan had been appointed collector of the customs for the district of Mississippi, in the State of Louisiana, on the 25th of June, 1841. It was in the usual form, with a condition that Morgan 'has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office.' The penalty was $120,000.

The suit was brought on the 15th of December, 1843, and the breach is thus set out in the petition:——

'Now these petitioners, by their attorney aforesaid, aver and expressly charge that the condition of said bond or writing obligatory has been broken in this, to wit, that the said Thomas Gibbes Morgan had not truly and faithfully executed and discharged, nor did said Thomas Gibbes Morgan continue truly and faithfully to execute and discharge, all the duties of the said office according to law. That the said Thomas Gibbes Morgan did, both before and after the time of the signing of said bond, and while he was collector as aforesaid, receive as said collector large sums of money belonging to petitioners, which he has in part only paid to petitioners, leaving the

balance of $274,775.17, which was received by said Morgan as said collector, and while he was said collector, and which said balance said Morgan has refused to pay to petitioners, and yet retains the same in his possession, though often directed and requested by petitioners to pay the same to them. That said Morgan has not, since the first quarter of the year 1843, transmitted the returns of his accounts as said collector for settlement to the proper officer, as he is required by law to do, and for that reason petitioners are unable to specify the items of said balance, but they reserve the right, by amended petition or otherwise, of furnishing a detailed statement of said Morgan's account as said collector so soon as he shall transmit his quarterly returns as aforesaid; by means whereof a right of action has accrued to these petitioners to have and recover the penalty of said, bond or writing obligatory, which, though amicably requested, said obligors refuse to pay.

'That said petitioners also reserve the right of proceeding, by amended petition or otherwise, against the said Thomas Gibbes Morgan for any other or greater sum than the penalty of said bond herein sued for, even should the same exceed the said balance of $274,775.17, inasmuch as, from the omission and neglect of said Morgan to furnish said quarterly returns, petitioners are unable to finally adjust the accounts of said Morgan as said collector.'

The defendants answered with a general denial, as in a plea of nil debet.

On the 27th of January, 1848, the cause came on for trial in the Circuit Court, and continued during that day, the 28th, and the 29th. The record stated the impanelling of the jury, the opening of the case by the district attorney, the fact that evidence was given on the part of the plaintiffs and on the part of the defendants, and the following verdict of the jury:——

'Verdict in favor of the United States, viz.:

For the balance acknowledged, $32,400.13

And commissions, 28,169.44

Amounting to $60,569.57

'JOHN CASTELLANO, Foreman.

'New Orleans, January 29th, 1848.'

The verdict was recorded and judgment entered up on the 9th of February, 1848. But the record did not show, in any part of it, what the evidence was which was given either on the part of the plaintiffs or defendants. The following bills of exception refer to, but do not state it.

'And afterwards, to wit, on the 4th day of February, 1848, the following bill of exceptions was filed by the United States district attorney:——

'THE UNITED STATES v. THOMAS GIBBES MORGAN and others.

In the United States Circuit Court in and for the Fifth Circuit and District of Louisiana.

'Be it remembered, that, at the December term of said court, on the trial of the above-named case, on this Saturday, the 29th day of January, in the year 1848, after the argument on both sides had been closed, and before the jury had retired, the Attorney of the United States for the district aforesaid prayed the court to charge the jury as follows, to wit:——

'First. That T. G. Morgan, and the sureties on his official bond, were liable in law for the sum of $99,915.27, an amount of treasury-notes received by T. G. Morgan, collector, in payment public dues, and lost by him, or stolen from him while in his possession, after they had been marked 'cancelled,' and before they were deposited in the post-office; for which purpose they had been put up in a bundle.

'And, on the day and date aforesaid, the attorney of the United States aforesaid further prayed the court to charge the jury,——

'Second. That the defendant, T. G. Morgan, and the sureties on his official bond, were liable in law for the sum of $1,074.89, being the amount of two treasury-notes of five hundred dollars each, and the interest thereon; which notes were received in payment of public dues by T. G. Morgan, collector, stolen from his office, altered, and afterwards again received by him.

'The court refused to give the above charges as required, but charged the jury that, if they believed, from the evidence before them, that the treasury-notes in controversy were received by the defendant in payment of revenue, and that he took receipt upon the back of them when received from the persons paying them in, and cancelled them on the face of each according to law, and had them put into a bundle in the usual manner for transmitting them to the Treasury Department, and gave orders to the person who had been in the habit of delivering them at the post-office to deposit them there for transmission, and they were lost or purloined without the knowledge or consent of defendant, he is not answerable to the plaintiff for them. And the court further charged the jury, that if they believed from the evidence that the two treasury-notes, amounting to $1,074.89, were part of the treasury-notes so cancelled, and intended to have been forwarded to the Treasury Department, but had been subsequently so altered

without the knowledge or consent of the defendant, so as to make them appear to be genuine, and he afterwards received them in payment of duties believing them to be genuine, he is not responsible to the plaintiff for them, but is entitled to a credit on the account of the plaintiff for that amount.

'Wherefore, the attorney of the United States aforesaid tenders this his bill of exceptions to the said refusal, and prays the same may be made a part of the record.

'THEO. H. McCALEB, [L. S.] U. S. Judge.

'And afterwards, to wit, on the 5th day of February, 1848 the following bill of exceptions, taken by the counsel of the defendants, was filed:——

'THE UNITED STATES v. THOMAS GIBBES MORGAN and others.

In the United States Circuit Court, in and for the Fifth Circuit and District of Louisiana.

'Be it remembered, that, at the December term of said court, on the trial of the above-named case, on this Saturday, the 29th day of January, in the year 1848, after the defendants had introduced evidence to show that the item charged by the said T. G. Morgan in his account for the second quarter of the year 1842, for safe-keeping and disbursement of public moneys from 12th July, 1842, to 26th July, 1843, being commission thereon, amounting to the sum of $28,169.44, was reasonable and just under the circumstances, and which said item had been disallowed by the accounting officer of the Treasury Department; and after the argument on both sides had been closed, and before the jury had retired, the counsel for the defendants aforesaid requested and prayed the court to charge the jury as follows:——

'That the defendant, T. G. Morgan, when acting as collector of the customs, not being under the law a disbursing officer, and the payment...