This statute proceeds upon the theory that condensed when carried to a ledger account, and the officers of the United States shall make up the results of many items or of some considerathe account of every revenue officer, that it shall ble period of time, may be stated in a briefer adjust the same on its books, and that the ac- form than they stood upon the original entries. count thus stated and adjusted shall stand as The means of particular information are open and for the sum for which such officer shall be to either party. We see no objection on this liable to the Government. This, no doubt, is sub-ground to the evidence now presented, and are ject to correction by such competent evidence of the opinion that there was error in its excluas may be produced. In other words, the state- sion. ment is prima facie evidence only, not absolute and conclusive.

In furtherance of this idea it is the duty of the Comptroller at once to institute suit for the recovery of the balance thus found and stated. A second result, and one indispensable to the existence of the theory, is, that the books shall be evidence of the truth of the amounts thus stated and declared to be due to the United States. The Act, therefore, provides that a transcript from these books and proceedings shall be admitted in evidence, and that, thereupon, the court is authorized to proceed to judgment and execution.

+6

In the present case copies of the report of the first auditor," numbered respectively 5,688, etc., and eight in number, were offered in evidence. The bill of exceptions states that no objection was made to the manner in which they were certified.

The suggestion that the Act is applicable to a defaulting principal only, and not to a surety, is not pressed and need not be considered.

The objection that the reports were frag

mentary and incomplete is not sustained by the

There was error also in excluding the evidence of the accounts rendered by Barrett, the principal. They seem to be complete, not partial or fragmentary, as alleged, and being statements made by him to the Government in the performance of his official duty, they are evidence against the party making them not only, but his sureties as well, and against third persons in privity with him. The authorities place the rule upon the grounds: 1, that the entries made are against the interest of the party making them; and 2, that a surety is bound by the acts and declarations of his principal, being within the scope of the business, as a part of the res gesta. 1 Phil. Ev., 4th Am. ed., p. 307, and note, also, pp. 525, 526; Plaxton v. Dare, 10 Barn. & C., 17; Middleton v. Melton, 10 Barn. & C., 317.

The judgment must be reversed and a new trial had.

Cited-106 U. S., 529.

facts. As presented in the record each report is THE WESTERN UNION TELEGRAPH

complete and perfect in itself. Each report contains all upon the subject during the time that it purports to represent. In the aggregate they cover the whole period of Barrett's service. The statute says that a transcript from the books shall be admitted as evidence. A transcript or a transcribing is substantially a copy. A copy from the books, and not of the books, shall be admissible in evidence. An extract from the books, a portion of the books, when authenticated to be a copy, may be given in evidence. While a garbled statement is not evidence, or a mutilated statement, wherein the debits shall be presented and the credits suppressed, or perhaps a statement of results only, it still seems to be clear that is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of any one account. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books. Gratiot v. U. S., 15 Pet., 356, 370; Hoyt v. U. S.,10 How., 109, 132; U. S. v. Eckford, 1 How., 250.

COMPANY, Piff. in Err.,

v.

CHARLES EYSER.

(See S. C., 19 Wall., 419-433.)

Supersedeas bond-writ of error, when filed.

1872, the supersedeas bond may be executed within
1. Under the 11th section of the Act of June 1,
sixty days after the rendition of the judgment, and
later, with the permission of the designated judge.
before, or simultaneously with, the filing of the
2. The writ of error may be served at any time
bond.
[No. 665.]

Submitted Dec. 12, 1873. Decided Dec. 15, 1873.
IN ERROR to the Supreme Court of the Ter-

ERROR to the Su

The case is stated by the court.

See, also, 91 U. S., 495 (XXIII. of this edi

tion).

Mr. J. H. Ashton, for plaintiff in error.

Mr. Justice Swayne delivered the opinion of the court:

Nor is the objection, that the reports charge This is an application for a writ of supersedeas Barrett with gross sums and with balances or an order, to the Supreme Court of Colorado without giving details, sustained by the facts. Territory, and to the District Court of the First The reports are made up with much particu Judicial District in and for the County of Aralarity, and give the items on each side of the paho, in that Territory, commanding that furaccount. It is not a case of a certificate of bal- ther proceedings upon the judgment in this case ances merely. We are not authorized, how-be stayed pending the writ of error whereby ever, to regulate the manner in which the departments shall keep their books, or to prescribe the minuteness of the detail. The items in these reports are manifestly made up from statements and details of the daily business fur nished by the collector. They are necessarily

the judgment was brought into this court for review. The judgment was affirmed by the Supreme Court of the Territory on the 6th of September, 1873. On the 8th of October following, the defendant sued out a writ of error returnable to this court. It was duly served and re

turned. On the day last mentioned a citation, the permission of a justice or judge of the said was served on the adverse party, and a super- appellate court." sedeas bond in the sum of $12,000, conditioned and approved according to law, was filed in the proper office. The plaintiffs in error represent in their petition that the defendant in error has applied to the Supreme Court of the Territory for an order that execution issue on the judgment, notwithstanding the writ of error and the supersedeas bond, and that they are apprehensive such an order will be made. Hence this application here.

The 23d section of the Judiciary Act of 1789, 1 Stat. at L., 73, declares "that a writ of error, as aforesaid, shall be a supersedeas and stay of execution in cases only where the writ of error issuance must, of course, precede the execution served by a copy thereof being lodged for the adverse party in the clerk's office where the judgment remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of."

* * *

within ten

days, Sundays exclusive," from the date of the judgment or decree. No provision of a different character upon that subject is enacted in the new Act, nor does it contain a word repugnant to the language or the requirements of the former provision. Execution is required to be stayed by the former provision for the term of ten days, but the new law does not contain any regulation upon that subject.

None of these suggestions can be controverted, but the argument is that inasmuch as Congress has extended the time for giving the security to prosecute the appeal to sixty days, it follows that the writ of error may be served within that time and still have the effect of a supersedeas, although the only section of the Act of Congress which gives it that effect provides that it shall have such an operation in cases only where the service is made by lodging a copy of it in the clerk's office for the adverse party within ten days.

Ten days from the date of the judgment or decree is allowed by the former law to serve the writ of error, but the new Act allows to a party desiring to stay proceedings sixty days to give the required security, and it even goes further and permits it to be given afterwards, with the permission of a justice or judge of the appellate court.

supersedeas, and to stay execution, he must sue | in the clerk's office out the writ and serve the same by lodging a copy thereof for the adverse party in the clerk's office within ten days, Sundays exclusive, after the judgment is rendered or the decree is passed and give the security required by the prior section in a sum sufficient to secure the whole amount of the judgment, except in certain special cases, as provided in the 29th Rule of this court. Within that period it is the absolute right of the party to adopt the necessary measures to stay execution pending the writ of error or appeal, and in order that he may not be prej udiced in the enjoyment of that right, the same section of the Judiciary Act provides that until the expiration of ten days no execution shall issue in any case where a writ of error may be a supersedeas, and also makes provision, in case the judgment or decree is affirmed, that the court affirming it may adjudge just damages to the respondent in the writ of error for his delay, and single or double costs, at their discretion. Repeated decisions of this court have established the rule that neither a writ of error nor an appeal is a supersedeas under the Judiciary Act unless the required security be given within the ten days mentioned in the 23d section of the Act. Stafford v. Bk. [supra]; Same Case, 17 How., 275 [58 U. S., XV., 101]; Green v. Van Buskerk, 3 Wall., 448 [70 U. S., XVIII. 245]; Silsby v. Foote, 20 How., 290 [61 U. S., XV., Questions not without difficulty, says Mr. 822]; Adams v. Law, 16 How., 144; Hudgins v. Phillips, are suggested by a comparison of these Kemp, 18 How., 531 [59 U. S., XV., 511]. two Acts, as the time within which the security Compliance with the conditions specified in the is to be given is alone acted on by the new Act. 23d section of the Judiciary Act must be shown Based on that suggestion the author inquires, in order that the writ of error or appeal may op: very pertinently, as it seems to me: does this erate as a supersedeas and stay execution; and alteration carry along with it a change of all the rule is also well settled that if the writ of er- the other provisions of the old Act as to the ror be not sued out in time to operate as a superse- lodging of the writ of error in the clerk's office deas this court cannot award a stay of execution. within ten days, and the provision that no exSaltmarsh v. Tuthill, 12 How.,387; Wallen v. Will-ecution shall issue within the ten days? The iams, 7 Cranch, 278; Hogan v. Ross, 11 How.,294. Unless the requirements of the Act of Congress are complied with, within the ten days allowed for the purpose, no court can make a writ of error or appeal operate as a stay of execution under the Judiciary Act. The Roanoke,3 Blatchf., 390. Grant all that, when the question is tested by the Judiciary Act, still it is insisted that the 23d section of the Judiciary Act is repealed by the 11th section of the Act entitled "An Act to Further the Administration of Justice," so as to substitute sixty days in the place of ten days as provided in the former Act. 17 Stat. at L., 198. By that Act it is provided that the plaintiff in error or appellant in such a case may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterwards, with the permission of a justice or judge of the said appellate court." Undoubtedly the security required by the 22d section of the Judiciary Act to be given to prosecute the appeal with effect may be given within sixty days from the date of the judgment or decree, but the Act to further the administration of justice contains no provision whatever making writs of error or appeals a su persedeas, or giving them the effect to stay exe cution under any circumstances. They have that operation and effect by virtue of the 23d section of the Judiciary Act" in cases only where the writ of error is served by a copy thereof being lodged for the adverse party

answer to the question, as given by the author, is directly opposed to the opinion just read, which appears to proceed upon the ground that inasmuch as a change has been made in one of conditions essential to a valid supersedeas it follows that the same change must be considered as made in all the other conditions, even though the new Act contains no other language to express any such intention, which, as it seems to me, reverses the standard rule of construction as expressed in a valuable maxim often quoted and applied in such discussions--Expressio unius est exclusio alterius. If Congress had intended to make other alterations in the prior regulations upon the subject, it is fairly to be presumed they would have said so, as it is always to be presumed that the Legislature, when it entertains an intention will express it in clear and explicit terms. Pott. Dwarris, 219. If the Legislature intended more, said Lord Denman, in Haworth v. Ormerod, 6 Q. B., 307, we can only say, that, according to our opinion they have not expressed it; to which it may be added that the better rule of construction is to hold that the Legislature meant what they have actually expressed, unless some manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would be erroneous. King v. Banbury, 1 Ad. & E., 142. Words may sometimes be transposed, but they cannot be inserted. Lamond v. Eiffe, 3 Q. B., 910. Intention, it is

true, should govern, but it must be such an in- writ of certiorari is not a proper remedy for the tention as the Legislature have used fit words alleged defect. Nothing is omitted from the to express. Pott. Dwarris, 182; Brewer v. transcript which is a part of the record in the Blougher, 14 Pet., 178. Repeals by implication court below. On the contrary, the only comare not favored. Wood v. U. S., 16 Pet., 342. plaint is that the clerk has not appended to the On the contrary, the leaning of the courts, says transcript his certificate that it contains the full Mr. Justice Swayne, is against the doctrine, if it record. Such a defect, in a case of contumacy, be possible to reconcile the two Acts of the Leg might be remedied by a mandamus, but no apislature together. McCool v. Smith, 1 Black, 470 plication of that sort is made, nor is it sug[66 U. S., XVII., 222]. Our best judgment is, gested that there are any grounds for such an says Mr. Phillips, that while the law has secured application. Under the circumstances the mothe right to stay proceedings by giving security tion for certiorari is denied, and leave is granted in sixty days, the party is still bound to lodge to the plaintiff in error to withdraw the tranhis writ, as required by the Judiciary Act, with script to enable him to apply to the clerk of the in ten days, and that in the absence of a super-court below to append thereto the necessary sedeas bond filed within that period the execu- certificate. tion may issue; and in that view I concur, and consequently dissent from the direction and opinion of the court. Service of the writ of error by lodging a copy thereof in the clerk's office for the adverse party within ten days, without more, will not effect a stay of execution, but if the security required is given within sixty days the supersedeas becomes effectual from the time the required security is given.

I am authorized to say that Mr. Justice Davis concurs in this dissent.

Cited--93 U. S., 89; 1 McCrary, 123.

ASA HODGES, Piff. in Err.,

v.

MILTON VAUGHAN.

(See S. C., 19 Wall., 12, 13).

Certiorari to correct record-when not proper remedy-withdrawing transcript.

1. A motion for certiorari is founded upon a suggestion of diminution, and is designed to bring up some part of the record left back and not included in the transcript.

2. A certiorari is not a proper remedy, when the only complaint is that the clerk has not appended to the transcript his certificate that it contains the full record. Such a defect in a case of contumacy, might be remedied by a mandamus.

3. In such case the motion for certiorari is denied, and leave is granted to the plaintiff in error to withdraw the transcript, to enable him to apply to the clerk of the court below to append thereto the nec[No. 666.]

essary certificate.

Motion filed Dec. 19,1873. Decided Dec. 22, 1873.

N ERROR to the Circuit Court of the United

to

Motion for certiorari.

of

The point in question sufficiently appears in the opinion.

Messrs. W. W. Wilshire and J. S. Robinson, for plaintiff in error.

Mr. A. H. Garland, for defendant in error.

Mr. Justice Clifford delivered the opinion of the court:

Such a motion is founded upon a suggestion of diminution, and is designed to bring up some part of the record left back and not included in the transcript.

When first presented, and without explanation, the court was inclined to grant the motion, but upon further consideration, we are all of the opinion that it must be denied, as the

FREDERICK Z. SALOMON, Appt..

v.

UNITED STATES.

(See S. C., 19 Wall., 17-20.)

Contracts for military supplies-implied contract.

1. The Act of 1862, requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance, invalid.

2. When the quartermaster in charge receives corn for the Government, and gives a receipt and vouches for the amount and the price, and the Government uses such part of it as it wants and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn.

[No. 165.] Argued Dec. 18, 1873.

Decided Dec. 22, 1873.

APPEAL from the Court of Claims.

The case is stated by the court.
Mr. T. J. D. Fuller, for appellant.
Mr.C.H. Hill, Asst. Atty-Gen., for appellee.

Mr. Justice Miller delivered the opinion of the court:

The appellant entered into a written contract on the 28th of July, 1864, with the Quartermaster's Department, to deliver at Fort Fillmore 12,000 bushels of corn, at such times and in such quantities, of not less than 1,000 bushels per month, as the assistant quartermaster should direct; 9,000 bushels before the 1st of January, and the whole amount by the first day of May, 1865.

The 9,000 bushels were delivered and paid for before the first day of May, and about this there is no dispute.

Some negotiations took place afterwards between appellant and the quartermaster of that military department, concerning the delivery of the remainder, the finding in regard to which, is not very clear.

The appellants did, however, deliver the remainder of the corn at Fort Fillmore, October 15, 1865, by depositing it in the military storehouse at that place.

The Chief Quartermaster's clerk afterwards examined this corn, weighed some of the sacks, counted the remainder and gave the claimant a receipt for the amount, stating that it completed his contract. The court finds that this clerk then and there accepted and took actual