United States v. Stone Stone v. United States

• Decision Date: 04 December 1882
• Citation: 27 L.Ed. 163,1 S.Ct. 287,106 U.S. 525
• Parties: UNITED STATES v. STONE and another. STONE and another v. UNITED STATES
• Court: U.S. Supreme Court

106 U.S. 525

1 S.Ct. 287

27 L.Ed. 163

UNITED STATES v. STONE and another.

STONE and another

v. UNITED STATES.

December 4, 1882.

Asst. Atty. Gen. Maury, for the United States.

Geo. E. Harris, for Stone and McAlexander.

MATTHEWS, J.

This action was brought by the United States upon an official bond of Benjamin B. Emory, as collector of internal revenue for the third district of Mississippi, against himself and Stone and McAlexander, two of his sureties. The bond is dated March 29, 1870, is in the penal sum of $50,000, and reciting that Emory had been appointed and had received a commission as collector for the district mentioned, dated December 29, 1869, is conditioned that 'he shall truly and faithfully execute and discharge all the duties of the said office according to law, and shall justly and faithfully account for and pay over to the United States, in compliance with the orders and regulations of the secretary of the treasury, all public moneys which may come into his hands or possession,' etc. The breach alleged is that he failed to account for and pay over the sum of $57,497.84 of public moneys which had come into his possession as such collector.

The defendants pleaded nil debet, and gave notice of special matter to be given in evidence under that plea, among others, that 'the alleged liability for which this suit is brought arose, if it arose at all, under a bond given by said Emory, as such collector, in October, 1869, and not under the bond on which this suit was brought,' etc. They also pleaded payment before suit brought, and also an argumentative plea of non est factum, to which a demurrer was sustained. Subsequently they filed an additional plea traversing the alleged breach of the condition of the bond.

Before the trial the district attorney moved to strike out the defendants' plea of nil debet, with the notice of special matter attached, and an order sustaining that motion appears from the record to have been made; although, from a bill of exceptions taken at the time, it is stated that the motion was sustained only so far as the notice was concerned, and overruled as to the plea. There was a verdict in favor of the United States for $10,003.52, and judgment rendered thereon. Writs of error were sued out by both parties, and are now prosecuted to reverse that judgment, for errors alleged to have been committed by the court in its rulings on the trial, duly excepted to by the parties respectively, and brought upon the record by bills of exception. They will be considered in their order, beginning with those assigned by the defendants below.

1. There was no error, as alleged, in striking out the notice of the special matter, to be given in evidence, under the plea of nil debet. It was proper to strike it out, because it was matter which denied the plaintiff's whole cause of action, which, consequently, it was bound to meet with its own evidence in the first instance, and which, therefore, the defendants traversed by the plea of nil debet, and the plea denying the alleged breach of the condition of the bond. Any evidence which would have been competent under the notice would have been equally so without it; and in point of fact, all the evidence offered on the part of the defendants, which was competent under the notice, was admitted under the pleas.

2. The first bill of exceptions taken by the defendants states that 'the said plaintiff offered to read to the jury certain transcripts from the books of the treasury department at Washington city, and certified transcripts of papers on file in said department, touching the official conduct of B. B. Emory as late internal-revenue collector for the third district of Mississippi, which said transcripts are dated respectively, _____, as shown by the certificates of the secretary of the treasury. And to these transcripts the defendants had filed written exceptions and objected to their introduction as evidence for the reasons assigned in said exceptions.' The court overruled the objection and permitted the transcripts to be read in evidence, to which reading the defendants excepted; and it is now assigned for error. In another part of the record there is this statement: 'The following are transcripts from the books of the treasury department at Washington and of papers on file, which are referred to in the bills of exception taken and filed in this cause.' THEN FOLLOWS 47 Printed pages of matter, consisting of certified statements of account from the books of the treasury department, and copies of numerous papers on file, apparently relating to the accounts of this collector. But it is impossible to know, with accuracy, from the record, which of these were offered in evidence by the plaintiff and to which the objection was intended to apply; for it appears from another bill of exceptions, and there were six in all, which was taken by the plaintiff, that some of these transcripts from the books of the treasury department were offered by the defendants themselves and admitted in evidence, against the objection of the district attorney, a ruling we are called upon to consider hereafter, as it is alleged as error on the part of the United States, under the writ of error which it prosecutes. It is only by subtracting these from the entire mass that we can infer to what the defendants objected. The exceptions filed to these transcripts, referred to in the bill of exceptions and found elsewhere in the record, are as follows:

'(1) The certificates are not such as the law requires; (2) the transcripts are...