The United States v. Boyd et al.

tion of Congress in this respect, and find security in the confidence that this court will never sanction such a disposition of any portion of the public domain. But what should be the course of the landoffice department on the matter before us? We think it is easy and natural and what their duty enjoins, and about which they will have no difficulty.

By proper proceedings to ascertain what lands have thus been entered, set aside the entries and have the lands disposed of as the act of Congress provides; these entries are nullities, and even if a patent had issued it would not affect the title of the United States. For this we beg leave to refer the court to the case of Stoddard and others v. Chambers, 2 Howard Supreme Court Reports of the United States, 318. There, it is said "no title can be valid which has been acquired against law. The patent of the defendant having been for land reserved from appropriation is void."

We may then certainly say that a false certificate made in violation of law and in fraud is void, and does not pass any title to the land out of the United States.

3d. The matters of the third point we think we have sufficiently considered of in what has been said on the first and second.

The fourth point, that V. M. Garesche was the agent of the general land-office to settle with Boyd, as receiver, that he made such settlement prior to the date of the bond, ascertained that the defalcation had thus accrued, and fraudulently enjoined secrecy on the officers and clerks in fraud of the defendants, we think we have sufficiently shown.

The fact is, he was such agent, and we think that the court below was bound to take notice that he was such without any direct proof. But William Dowsing, the register of the land-office, says,"Some time between the 10th and 20th of May, 1837, V. M. Garesche, Esq., produced to him the letter of his appointment from the general land-office department of the United States, authorizing him to examine certain land offices, of which this was one; and from a knowledge derived from a frequent correspondence with the land-office department, I knew the letter of appointment which he produced to be genuine."

John Davies says, "Some time in the spring or summer of 1837, the general government sent an agent, named V. M. Garesche, for the purpose of examining into the condition of the land offices." Robert E. Harris says, that," In the latter part of the spring or the first of the summer of 1837, a settlement took place in the landoffice, between Col. Boyd, and a man by the name of Garesche, as agent of the government, in reference to such defalcation. He had no other knowledge of the agency of Garesche, or bis authority as such, except that he was recognized and regarded by the register and receiver of the land office at Columbus as such agent, and who settled with him as such." This we have thought sufficient.

The United States v. Boyd et al.

His appointment, whatever may have been its form, was not in the possession or control of the defendants. The injunction of official secrecy by Garesche as to Boyd's defalcation, see the testimony of William Dowsing, and that of John Davies. This suppression of the fact of Boyd's defalcation was a gross fraud on the sureties, who after the defalcation became sureties. It is most probable, that had the sureties been informed that Boyd had become a defaulter to the government to that large amount, they would have been sufficiently prudent never to have become responsible for him on the bond. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. 2 Howard, S. C. R. 318. It certainly ought to defeat a false certificate.

The plaintiffs further offered the copy of another and different bond, which was objected to by the defendants; and as it related to another, separate, distinct, and independent matter, the court very properly sustained the objection.

The plaintiffs also objected to some portions of the testimony, on account of the manner in which the several witnesses gave in their testimony, but as the objections were trivial, unbecoming the dignity of the investigation, and as the testimony is in other respects regarded amply sufficient to sustain the verdict, we have not thought it necessary to notice them in detail. When the court charged the jury that the plaintiffs had made out a primâ facie case, the plaintiffs' attorney substantially obtained all the charges he asked for ; the court had already permitted the treasury transcript to be given in evidence to the jury, as being in judgment of law sufficient to establish the plaintiffs' right; the jury of necessity regarded them in that light. But the defendants were allowed to impeach the transcripts for illegality and fraud. It was equally regular to impeach them for any omission or mistakes, and thus they were compelled to yield the influence of the rebutting proofs.

In view of the whole case, we are satisfied it will be seen that the said Boyd had not any money of the United States at or after the execution of the bond, but that the same had all been paid into the treasury.

That his entire defalcation arose from his fraudulently and illegally issuing land certificates in his own name, and in the name of others, without being paid the purchase money, that they ought to be set aside, and the land considered as yet belonging to the gov

ernment.

That it was a fraud in Garesche to conceal from the sureties the fact of Boyd's defalcation, and that the judgment of the court below ought not to be reversed, but the executive government left to the discharge of its duty in setting aside those illegal entries andcertificates.

The United States v. Boyd et al.

Synopsis of the Argument of John Henderson, for Defendants.

The bill of exception filed in this case is of that form which has heretofore met, and we think deservedly, the reprehension of this court. It comprises, at length, all the testimony on both sides, and extends to 161 pages, being all the record, less 17 pages. The various parts of the testimony is chiefly objected to, with a generality of exception, which presents no specific matter of law for the consideration of this court, but devolves it upon this court to sift depositions at length, to ascertain if there be any exceptionable matter to justify the general objections taken.

We should feel ourselves justified, did we think our defence made it necessary, to object that most of this extended volume of testimony is not before this court on any sufficient points of exception, as to entitle it to be reviewed by this court, under the common law rules of proceeding, as a court of error. But, waiving all such objections, we shall meet the plaintiffs' case, regardless of this deficiency.

In aggregating the general objections of the plaintiffs to the five several depositions of the defendants, that they were "incompetent" testimony, and with intimations that plaintiffs' case rested on "conclusive" proof, we can reduce these objections to no other legal position, than that the defendants were estopped from denying the plaintiffs' case by any proof whatever. For surely the defendants' testimony was pertinent to the issue, and it is not objected that the deponents were not competent and disinterested witnesses. Nor can it be doubted but the jury rightly estimated this testimony as disproving the plaintiffs' case. Reduced, then, to a legal elementary principle, the sum total of these objections is, that the defendants were concluded and estopped in law, from showing the truth against the fair-seeming, hut fictitious case the plaintiffs had presented.

To this view of the case, our first answer is, that, if this position has any foundation in law, then it was peculiarly a case in which the estoppel should have been pleaded. It was not an estoppel in pais, coming up incidentally as evidence. The supposed matters of estoppel were the treasury, transcripts presented by the plaintiffs as their ground of action, and if regarded by them as records conclusive on the defendants, they should have pleaded them specially in their replication, and not joined the defendants in an open and general issue, and then object that the defendants should not prove their issue as joined. If, then, it be a case of estoppel, it should have been so pleaded. 6 Mumford, 120; 2 A. K. Marshall, 143; 3 Dana, 103; 2 J. R. 382; 6 Pick. 364; 14 Mass. 241; 2 Blackford, 465; 2 Penn. 492.

But we say this is not an estoppel, because neither matter of deed or of judicial record. 18 J. R. 490; 3 Wendell, 27.

The United States v. Boyd et al.

And is not an estoppel, because there was no mutuality of obligation between the parties to the matter of estoppel. The United States were not concluded by Boyd's returns, neither by the account as stated, nor the fictitious sales of the public lands, thereby reported to have been sold. Estoppel must be mutual. 2 J. R. 382; 3 Randolph, 563.

Boyd's returns were no stronger evidence than receipts, which never work an estoppel. 12 Pick. 557.

But, so far from the plaintiffs' proof from the treasury department being "conclusive," a part, if not all of it, was clearly inadmissible as evidence at all.

The account showing settlement and balance struck by the treasury, department against Boyd was no sort of legal proof. It resulted from no accounts and charges kept in the treasury department, and included no charge for money advanced or paid out of the department, but was only the result of certain treasury officers, in stating Boyd's account from reported returns, and data furnished by himself.

Now, the rule is settled in the case of United States v. Buford, and in other cases, that in a suit for money which came to the hands of a collecting officer in pais, and not received from the treasury department, a treasury statement, in such case, is no evidence of the debt. 3 Pet. 29; 6 Pet. 202; 5 Pet. 292; 8 Pet. 375.

The papers certified from p. 17 to 22 of the record, are of this description, and should not have been admitted in evidence at all. Gilpin's D. C. R. 47.

The accounts certified from p. 48 to 55 as "true copies of the originals on file in said department," are perhaps, by another provision of law than that which provides for certified transcripts of accounts from the treasury books, admissible as secondary proof of the facts contained, but not necessarily of a debt due, and certainly as open to correction or disproof as accounts and receipts ever are, and having, in no sense whatever, any judicial verity. See cases cited above.

The plaintiffs' testimony shows, that the alleged balance of account due from Boyd was not of money received after execution of defendants' bond, but is carried forward, as "an amount remaining on hand per last return," from the months of February or March preceding.

The facts, then, which we have assumed as our right to prove are, that this reported balance was a mere fiction of figures, without any reality; and that the fiction was made to figure as fact, by a device, palpably violative of the laws of the United States, in selling the public domain on credit, and charging up the price as cash received. We have answered, that it was our province to show, and by our proof we have shown, to the satisfaction of a court and jury, that the balance of money on hand, as reported by Boyd, since the exe

The United States v. Boyd et al.

cution of defendants' bond, was a fiction. 5 Pet. 373; 8 Pet399.

We have shown by our proof, too, that this balance arose from sales made of the public land on credit, and for which no money

was received.

Can this court assume, for a moment, this may be lawfully done by the mere unmeaning device of a receiver, charging up his account sales, that the price was received, when in truth it was not.

The law says credit shall not be allowed for the purchase money on sale of the public lands after 1st July, 1821. Land Laws, 324. That lands subject to entry shall be paid for "at the time of making such entry." Land Laws, 324.

Is there any equitable license for the land officer, or this court, to dispense with the positive requirements of this law?

Now, we maintain, the provisions and requirements of this law rest in a superior and pervading public policy, and, as such, its high commands are in no sense directory, but mandatory and peremptory. Laws founded in public policy have no flexible equities authorizing any countenance to be given by the courts to their violation. Nor can it be tolerated, to meet any particular act of the citizen, that their known violation should be judicially covered up by an estoppel. Such are the English shipping acts, and so of ours; and of like high statutory policy is the system of our laws for the sale of public lands. 1 Story's Equity, § 177.

In this case, then, the court will declare it to be the duty of the land department of our government to disregard these affected and unreal sales, consider them as void, and resume the title to the government, as unaffected by the acts now attempted to be validated; and such, in effect and principle, has been the previous decisions of this court. No title is valid if acquired against law. A patent issued against law is void. 2 Howard, 318; 13

Pet. 511.

Lands not subject to sale by law do not pass, without a register's certificate and payment; and the title of the United States is not diverted or affected thereby. 13 Pet. 498.

So, too, 11 Wheat. 384; 9 Cranch, 87.

The objection to Boyd as a witness is not well taken. He was exonerated by the parties for whom he deposed, for both debt and costs, and had, therefore, no interests disqualifying him. 11 Pet. 86; 7 Cranch, 206; 7 Wheaton, 356.

The objections to the charges and refusal to charge by the court below, we regard as wholly groundless. The court charged the full strength of the plaintiffs' case, and the other points vindicate themselves on reading.

But if this court should possibly find error in the trial, then we fall back upon the first error in the judgment of the court below on the pleadings, and demand the judgment of this court on the