United States v. Badeau

• Decision Date: 06 July 1887
• Citation: 31 F. 697
• Parties: UNITED STATES v. BADEAU.
• Court: U.S. District Court — Southern District of New York

31 F. 697

UNITED STATES v. BADEAU.

United States Circuit Court, S.D. New York.

July 6, 1887

Stephen A. Walker, U.S. Atty., for the United States.

Stephen G. Clarke, for defendant in error.

WALLACE J.

This suit was brought in the district court to recover sums of money, amounting in the aggregate to $10,572.64, received by the defendant to the use of the plaintiff between July 1 1870, and September 16, 1881, as consul general of the United States at London, England. In the final account rendered by the defendant to the government in December, 1882, he credited the government, and charged himself, with certain moneys in his hands, less the sum in controversy; which sum he claimed he was entitled to withhold out of the moneys in his hands, because it represented the amount of fees which he had theretofore erroneously charged against himself in former accounts rendered to the government. The issue upon the trial was whether the defendant was entitled to retain these fees amounting in the aggregate to $10,572.64, as non-official fees, or whether they belonged to the government as official fees. The case for the government was rested upon the production in evidence of a treasury transcript of the account of the defendant. The nature of the items charged to the defendant in this account, comprising the sum in controversy, appears in the treasury transcript, so that upon the face of the account it was shown that the defendant had charged himself with fees received for specified acts or services, amounting in the aggregate to $10,572.64; and the only question upon the face of the account was whether these acts or services were official or non-official in their character. The case for the defendant was rested upon his own testimony that the items with which he had originally charged himself, comprising the sum in controversy, were moneys received as fees for the acts and services described and detailed in the account, and upon further testimony tending to show the interpretation and construction of the department of state in respect to the regulations prescribing the duties of consular officers.

At the close of the evidence each party requested peremptory instructions to the jury,-- the plaintiff, to render a verdict in its favor; and the defendant erroneously charged himself originally with the items which comprise the sum in controversy, because they consisted of fees received by him for non-official acts. The counsel for the plaintiff then asked to go to the jury upon the question whether the fees were received by the defendant for non-official acts, but the court instructed the jury to find a verdict for the defendant. The plaintiff has brought this writ of error to review these rulings, and other rulings made during the progress of the trial, to which the plaintiff took exceptions.

There is no merit in the exceptions to the rulings of the court in admitting evidence. Even if the testimony received should be deemed irrelevant, as the case was not submitted to the jury the jury were not misled.

Neither is there any merit in the exception to the ruling of the court refusing to submit any question of fact to the jury. There was no conflict of evidence as to what the acts were for which the fees in controversy were received by the defendant. Whether they were official or non-official was a question of law. The fees were received for taking ...