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 proceed ings.

When the cause came back to the court below, Boyd, after craving over, 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. plaintiffs 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 receiver, receive any public moneys at the time of the execution of said bond, or at any time there after, 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 where chargeable by virtue of the said bond, received by him prior to the exe cution 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.

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 regis ter'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, [*33 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.

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 witness testified that he had no money in his hands, 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 lawfully without payment, then the sureties were not liable.

2. That the facts stated in the transcripts of the returns made by Boyd, of moneys on hand, were not conclusive 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 plaintiffs made out a prima facie case; but that if they believed, from the whole evidence, that the defalcation of Boyd arose from the entry of lands in his own name and in the name of others without payment 34*] *of money for the same, and previous to the 15th day of June, 1837, the date of the bond, the sureties were not responsible.

The court further charged the jury, that if they believed from the evidence that a fraudulent design existed, on the part of Boyd and Garesche, to conceal the fact of Boyd's defalcation from the sureties until they should execute the bond; and that such design was communicated to the Secretary of the Treasury, and his answer received before the actual execution of the bond, that then the bond would be fraudulent and void, and the sureties not liable.

To the instructions as given, and also to the refusal of the court to give the constructions as prayed for, the counsel for plaintiffs excepted. The jury found a verdict for the defendants.

The cause was argued at the preceding term by Mr. Mason (then Attorney-General) for the United States, plaintiffs in error, and by Messrs. Cocke and Henderson for the defendants in

error.

Mr. Mason made the following points:

I. The court erred in admitting testimony objected to, and in rejecting testimony offered by the United States to rebut defendants' evidence.

1. There was no legal proof of Garesche's agency, or of the extent of his powers to bind the United States. If any such agency existed, the instructions were of record in the Treasury Department, could be made evidence in the mode prescribed by law, and secondary evidence was inadmissible. To this general rule of evidence there are some exceptions; but this is not one, or within the principle of them. (Jacob v. United States, 1 Brock. Rep., 528, a

case of exception.) Agency is a contract, and what constitutes it is matter of law. (1 Livermore on Agency, 25.) In this case, the learned judge refused to decide whether there was proof of agency, and yet admitted secondary evidence, which was not admissible to establish it; certainly not without notice to the plaintiffs to produce papers in their possession.

As the acts of an agent bind his principal only when within the scope of his powers, it is indispensable to prove the character and extent of his powers before it can be determined whether a particular act is to have that effect. (United States v. Brig Burdett, 9 Peters, 682.)

2. Boyd was an incompetent witness. He was a sworn officer, and made his returns under the sanction of an oath; he was admitted as a witness to prove that these returns were not true. Public policy strongly forbids this, and the maxim of law, nemo allegans suam turpitudinem est audiendus, applies.

The case of United States v. Leffler (11 Peters, 86) does not conflict with this position. In that case the testimony of the principal obligor was not inconsistent with his official conduct. *3. But if Garesche's acts were to be [*35 permitted to influence the jury, on the proof of agency submitted in establishing a fraudиlent combination, then the bond previously executed by Boyd, and the defendants as his sureties, was admissible to rebut the inference that they were fraudulently induced to execute the bond on which this suit was instituted. Fraud is an extrinsic circumstance, which, if it exists, will vitiate the act infected; but all extrinsic circumstances are admissible_to_rebut such an allegation. (2 Starkie on Evidence, title Fraud, 586; Estwick v. Caillaud, 5 Term Rep., 426.)

II. After the decisions of this court in the cases of Linn v. The United States (15 Peters, 290), Ferrar & Brown v. United States (5 Peters, 373), and The United States v. Boyd (15 Peters, 187), I do not feel at liberty to argue that the official accounts of the receiver are conclusive against his securities, or that they are responsible for past defalcations, when the language of the condition is not retrospective.

On the merits, it is respectfully submitted, that, on another assignment of breach of the condition, the sureties may be held liable for so much of Boyd's default as arose from his certificates for lands taken up by himself, for which he did not pay over the money when required to do so. There is no legal disability in the receiver to enter public lands.

In United States v. Boyd (15 Peters, 187), the court held that "it matters not at what time the moneys had been received, if after the appointment they were held by the officer in trust for the United States, and so continued to be held at and after the date of the bond," the securities are bound. As a necessary counterpart of this proposition, if he was so indebted for lands entered by himself, while in office, and the United States chose to recognize the entry so made, and required payment at and after the date of his bond, his dereliction "was not complete" until his refusal to pay, or his failure to receive from himself; and for such dereliction his securities were liable. Issuing a certificate without payment to himself on his own entry is official misconduct; but that is

not such a misconduct as to vacate the sale, unless the United States insists that it is no sale. In this view, if correct, it is important that there should be another trial to enable the government to make a new assignment of breach, so as to present this inquiry.

The verdict for the defendants is general. The court below refused to instruct the jury that fraud could not be imputed to the United States, but gave the third instruction, which it is submitted was wholly erroneous. The jury were charged, if they believed from the evidence that a fraudulent design existed between Boyd and Garesche to conceal the fact of Boyd's defalcation from the sureties, until they should execute the bond, and that such design was communicated to the Secretary of 36* the Treasury, and his answer *received before the actual execution of the bond, that in such case the bond would be fraudulent and void, and the sureties not liable.'

Fraud to have this effect is either matter of law or matter of fact. The instruction proceeds on the assumption that the fraud in this case was fraud in fact, which was left to the jury. Assuming even that the United States may be responsible for the fraudulent conduct of its agents and officers, this instruction was

erroneous.

1. Because the bond, being prospective in its operation, was not in law or in fact vitiated, if the prior defalcation was concealed from the sureties, or unknown to them.

2. Because there was no proof before the jury of Garesche's agency, or of the scope of his powers, and the court ought not to have left to the jury to frame their verdict on a state of facts which the evidence did not establish. The court having refused to charge the jury on the question, was in error to assume, in this instruction, that the agency existed to the extent of affecting the United States by his fraudulent acts. (Hunter v. United States, 5 Peters, 173.)

3. There is no intimation of what the secretary's answer was, to have the effect of vitiating the security. All that was required was that Boyd and Garesche conspired to conceal the default, that such design was communicated to the Secretary, and his answer received, no matter what it contained; that fact, with the others, wholly insufficient of themselves, in the opinion of the court avoided the bond. It is not conceived possible that such a state of facts is to deprive the government of its resort against the sureties for the official misconduct of their principal.

By law the receiver is to execute bond, with approved security. The duty of approving cannot be delegated to an agent; and as no agency can exist but to do a lawful act, the ministerial duty of seeing the bond executed, and transmitting it to the Treasury Department, where it was by law to be approved, could not, in the nature of things, include power to vacate the bond by misconduct of the agent. And hence the importance in this case of showing, by proof, the scope of the supposed agent's powers.

Mr. Cocke, for defendants:

[After arguing the point of the demurrer to the rejoinder, came to the treasury transcripts.] We are here called upon to examine whether these certified balances are evidence sufficient

to sustain the action. If we shall find that they are not, then the court cannot legitimately disturb the verdict of the jury for the defendants. To the point of the admissibility of the transcripts of the accounts in gross, we cite, that "the act of Congress, in making a transcript from the books and proceedings of the treasury evidence, does not mean the statement of an account in gross, but a statement of the items both of debits and redits as they [*37 were acted upon by the accounting officers of the department. (United States v. Jones, 8 Peters, 375.)

The defendant is unquestionably entitled to a detailed statement of the items which compose his account. (Ibid.) A certified statement of the balance due and a report thereof to the comptroller, is not such a transcript from the books and proceedings of the treasury as may be given in evidence under the second section of the Act of the 3d March, 1797. (United States v. Patterson, Gilpin's Dist. C. R., 47.) In looking to the duties and liabilities of receivers of public moneys, for the sale of public lands in any land district of Mississippi, there is, perhaps, no form in which public moneys can come into their hands officially, for the payment of which sureties are chargeable, except it be for moneys received for the sale of public land sold in conformity with the requirements of law. A detailed statement of the items is then indispensably necessary both to give information of the plaintiffs' demand, and to enable the defendants to defend themselves against any illegal or unjust charge; for example, if the item were for the sale of a certain section of land in a certain township and range, it would be competent for the defendants to show that the land was not in the land district, had never been offered for sale by the proclamation of the President, was some one of the variety of Indian or other reservations, and that the title had in no manuer been affected by the supposed sale. But to allow a certified statement of a mere money balance in gross, or certified statements of money quarter balances, to inculpate the defendants would, of necessity, work judicial oppression and injustice; we therefore repeat that the plaintiffs have not made out such a case as would enable them to recover, and that the verdict of the jury for the defendants cannot in this court be disturbed.

The case having arisen in Mississippi and tried there, if her laws are to have effect on the subject (but it is believed they have not), the same principle there prevails; thus, in an action of indebitatus assumpsit, the plaintiff shall file with his declaration an account stating distinctly the several items of his claim against the defendant, and in failure thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly described in the declaration as to give the defendant full notice of the character thereof. (Howard and Hutchinson's Digest of the Laws of Mississippi, 590, sec. 6.)

From any view we have been enabled to take of the subject, whatever may be the nature or manner of the subsequent proceedings, the verdict in this case cannot be disturbed.

The next subject that may engage the attention of the court is an *authenticated [*38 abstract of lands purchased by Gordon D. Boyd

Also a certified abstract of lands purchased by Boyd in his own name previous to his being appointed receiver.

Also a certified abstract of lands assigned to Boyd previous to his being appointed receiver.

Also a certified abstract of lands purchased by Boyd after he was appointed receiver.

Also a certified abstract of lands purchased by Boyd in company with others after he was appointed receiver.

And also a certified abstract of lands assigned to Boyd after he was appointed receiver.

These several lists we have examined with care, and looked for their application to the matters in litigation in this suit with anxiety; and if they have the remotest connection with any matter here, on inquiry we confess we have not been able to discover it.

If, however, the court shall perceive their connection and importance, the judges will not fail to make the proper application and determine the weight to be given them in the evidence; we acknowledge our inability to do so.

The remaining balance of the plaintiffs' testimony is certain certified money accounts of the United States with Gordon D. Boyd, receiver of public moneys. These purport to be the quarterly statements of Boyd, of moneys remaining on hand from quarter to quarter, and stand obnoxious to the objections we have before considered. First, that they are not accompanied with transcripts from the books and proceedings of the treasury, showing the items which constitute the accounts in gross. Second, that the lands sold for which the balance is supposed to be created are not stated; and Third, that the sureties should not thereby be denied all opportunity of defending themselves, even by showing that the lands were not subject to sale, that the title thereto yet remained with the government, or to such person as they might otherwise belong. But we will ask the favor again to call the attention of the court to this subject, when we shall consider the testimony of the said Gordon D. Boyd and other witnesses for the defendants. The plaintiffs here rested their cause. The defendants, in their defense, offered the testimony of the witnesses, William Dowsing, John Davies, John D. Montgomery, William B. Winston, Robert E. Harris, and the said Gordon D. Boyd.

To which the plaintiffs objected as incompetent, on the ground that the official returns or reports of Boyd, as receiver, could not be contradicted or explained by parol evidence; and the plaintiffs, by their attorney, thereupon moved the court to charge the jury that the of ficial returns of Gordon D. Boyd, made to the Treasury Department, under the sanction of his oath of office, were conclusive against his sureties. But the court permitted the testimony 39*] of the said witnesses *to be given to the jury. Before we examine that testimony, we are called upon to determine whether the matters referred to in these treasury transcripts and abstracts are, in law, conclusive upon the defendants, and fix their liability beyond all controversy, like unto a judicial sentence or other

The Act of Congress of the 3d of March, 1797, uses this language, "shall be admitted as evidence." Its admissibility only is provided for; but nothing is said as to its effect or the amount of credence to be given to it. It is exparte and in derogation of the fixed rules of evidence, and cannot be extended by implication to prohibit sureties from ascertaining the truth, or freeing themselves from the supposed liability of false reports made to the department.

In the case of The United States v. Eckford's Executors (1 Howard's Supreme Court Reports, 262, 263) the court say: The government must show the amount of the defalcation of the collector during the term for which the defendants were sureties, to charge them, and this is not done on the face of the general transcript. It is necessary, therefore, to have a restatement of the account for this purpose. The restatement does not falsify the general account, but arranges the items of debts and credits, so as to exhibit the transactions of the collector during the four years in question. Whether this be done by depositions or in the form of the transcript may not be material. We think that the transcript or restatement of the account as explained by the depositions was competent evidence to the jury. This statement, as appears from deposition of Tarbutt, is deficient in not giving all the credits to which the collector was entitled, but as it relates to the matter in controversy it is evidence. The jury will determine what effect it shall have; the amount charged to the collector at the commencement of the term is only prima facie evidence against the sureties.

64

If they can show, by circumstance or otherwise, that the balance charged in whole or in part had been misapplied by the collector prior to the new appointment they are not liable for the sum so misapplied."

It was, in the case here referred to, contended that the duty of the treasury officers in settling these kind of accounts were in their nature judicial and conclusive, but the court did not sustain such views; on the contrary, regarded them as prima facie only, and subject to be rebutted by circumstances or otherwise. But we contend that if they had been regarded in the nature of judicial sentences, being merely cer tified balances in gross, they were not admissible in evidence, any more than would be the minute of a final judgment of a court unsupported by any writ, pleadings, or proofs. The instruction, therefore, of the court to the [*40 jury, that the evidence on the part of the plaintiffs made out a prima facie case, was certainly as strong for them as they had any right to demand. Taking these treasury transcripts, then, as containing a prima facie showing of the de fendants' liability, we maintain that a full and complete defense is found for them on the following grounds:

1st. That all moneys that were in fact received by Boyd, as receiver, had been well and

truly paid by him into the treasury before the commencement of this suit.

2d. That the balance claimed by the United State arose from returns made by him of false and illegal entries of public lands in his own name and in the names of others, prior to the execution of the bond, and that on such entries no moneys were in fact paid to said receiver or in his hands before or after the execution of the bond; that such entries were unlawful, were nullities, and passed no title out of the government.

3d. That if any balance of moneys received by Boyd was received by him before the execution of the bond, that none such was held by him in trust for the government at or after the execution of the bond, but had been used, wasted or converted to his own use prior to the execution of the said bond, and,

4th. That the fact of Boyd's supposed defalcation existed prior to the date of the bond, and was known to V. M. Garesche, the agent of the government, who was bound in morals and in law to have the same known to the sureties, but who concealed such knowledge and enjoined official secrecy in fraud of the sureties. That the said bond was obtained from the sureties by fraud, and no liability exists against them on the bond.

As to the first point, it will be borne in mind that the bond is prospective both in its terms and legal effect, and that it is dated on the 15th of June, 1837. It will be seen by reference to the testimony of William Dowsing, the register of the same land office, that the first entry that purports to have been made before Boyd, as receiver, was on the second day of December, 1836, and that the entries closed on the 29th of May, 1837; both of these periods were before the date of the bond. According, then, to the opinion of the court made in this case on the former adjudication, the sureties are not liable, unless such public moneys remained on hand at and after the date of the bond.

The testimony of all the witnesses, William Dowsing, John Davies, John D. Montgomery, William B. Winston, and Robert E. Harris, conduce to show that Boyd made his deposits of public moneys, as they accrued, in the office of the Planters' Bank, at Columbus, where he ought to have made them. By reference to exhibit A, part of the deposition of William B. Winston, it will be seen that the deposits were so made by him, and on comparing them with the statement of moneys paid by Boyd to 41*] the government, it is shown that he well and truly paid over to the plaintiffs all the public moneys actually received by him, and that at or after the date of the bond no such moneys remained in his hands.

The testimony of these witnesses certainly Conduced to show this, and the jury having found the issue for the defendants, the court would not be authorized to disturb the verdict. Tuis is so without regard to the testimony of Boyd, but if the testimony of Boyd be competent it is a full defense to the defendants, and is conclusive of the issue in behalf of the defendants. He testifies that at the date of said boad he had no moneys in his hands, as receiver, and did not otherwise hold any moneys at that time for the United States or in trust for them; that before the execution of said

bond he had fully informed V. M. Garesche, the agent of the Land Office Department, that he had no such moneys in his possession; and being further interrogated, he stated that his default, as receiver, was complete and consummated before the execution of said bond, and that after the execution of said bond he did not receive any such moneys not paid over.

If his testimony be competent, its weight and credibility were alone for the province of the jury; they having believed him, and having found their verdict for the defendants, there is no rule by which this court on error would be authorized to disturb the verdict.

We entertain no doubt of the competency of his testimony. He had been previously prosecuted at the suit of the United States in a distinct and separate proceeding for the identical same cause of action, and the United States had obtained a judgment against him on the 15th of June, 1838, for the sum of $53,722.50. These proceedings he relied upon as a bar to the plaintiffs' right to have another judgment against him for the same cause on the bond; nul tiel record was relied upon by the plaintiffs, but it was found that there was no such record; and as it was not thought regular for the plaintiffs to have two operative judgments against the same person for the same cause at the same time, Boyd was discharged from the second action and had no further connection with it. But he was principal in the bond and the other defendants his sureties only.

Before he was allowed to testify, the defendants, on behalf of whom he did testify, were required to release him, his heirs, executors, and administrators, from all claims against him for any money or other thing which he might be liable to them or either of them by reason of any recovery or judgment that might be had against them or either of them, and also all costs incurred or to be incurred by reason of any suit upon the bond, after the discharge mentioned; by these releases the said Boyd was rendered a competent witness for the sureties, who thus released him, and was correctly permitted to testify. (United States v. Leffler, 11 Wheaton, 86.) But whence, it may be asked, arose his supposed defalcation? We answer, by his having issued certificates for land before the date of the bond in his own name and in the name of others without having received the purchase money therefor. See the [*42 testimony of William Dowsing, John Davies, John D. Montgomery, and Robert E. Harris, in the printed record. If this be so, allow us here, secondly, to say that whatever may be the nature of the liability of Boyd or his sureties for malfeasance in office, for and on account of these certificates, this proceeding for money received and on hand at and after the date of the bond cannot be supported. In this respect the jury having found for the defendants, this court would not be authorized to disturb the verdict.

We do not think that the United States can be deprived of any portion of the public domain by such false certificates. The Act of Congress of the 24th of April, 1820, changing the mode of the disposition of the public lands from the credit to the cash system, provides that "credit shall not be allowed for the purchase money on the sale of any public lands