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JOHN SMITH, T. PLAINTIFF IN ERROR v. THE UNITED STATES

January 1, 1831

JOHN SMITH, T. PLAINTIFF IN ERROR
v.
THE UNITED STATES, DEFENDANT IN ERROR.



The objection, that this signature of the secretary of the treasury was signed by his chief clerk, seems not to be important. It is seal which authenticates the transcript, and not the signature of the secretary. He is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved in deciding this point, whether the secretary of the treasury can delegate to another the power to do an official act, which the law devolves on him personally. THIS was a writ of error to the district court of the United States for the district of Missouri, exercising the jurisdiction and powers of a ciruit court. In that court the United States instituted a suit against the plaintiff in error, John Smith, T. who, with Wilson P. Hunt, were, by a bond executed on the 7th of February 1810, in the sum of ten thousand dollars, the sureties of Alpha Kingsley, appointed a district paymaster, in the army of the United States under the act of congress passed on the 16th of March 1802. Alpha Kingsley was dismissed from the service of the United States in 1815. The action was commenced in December 1824. The pleadings are stated fully in the opinion of the court. The case was argued by Mr Benton for the plaintiff, and by Mr Berrien, attorney general, for the United States. For the plaintiff in error Mr Benton contended: 1. That the sureties of the paymaster were exonerated by the neglect of the United States to settle the accounts of their principal. Although Alpha Kingsley was dismissed in 1815, and made frequent applications for the settlement of his accounts; no settlement was made until 1823. 2. The treasury transcript was not evidence in the cause; as it was not certified by the secretary of the treasury, but by Mr Jones, who was the chief clerk in the department. 3. The transcript and certified copy of the bond were not evidence, against the sureties, to show that Alpha Kingsley was a 'paymaster;' and the district judge erred in instructing the jury that it was evidence conducting to prove that fact. 4. The transcript was not evidence of debt against the sureties. They were entitled to notice of the settlement of the accounts, and to a trial by jury to ascertain the amount, and for which they are responsible. The attorney general, in reply, argued: that the act of congress of 1797 does not require the certificate of the secretary of the treasury to the transcript. It is to be certified by the register, under the seal of the treasury. All the requisites of the law were complied with. 2. The account settled at the treasury, and the copy of the bond were evidence of official acts by the paymaster. Proof of official character may be made by showing individual acts in that character. 2 Starkie on Evidence, 370. 1 Phillips, 170. Cited also, 1 Starkie, 30. 1 Phill. 79. The act of congress makes a copy of the bond evidence equal to the original. The transcript contains the bond, and thus the bond is a part of the transcript. 3. The decisions of this court in The Postmaster General vs. Early, 12 Wheaton, 136; and Dox vs. The Postmaster General, 1 Peters, 318; and in other cases, are conclusive to show, that the sureties cannot avail themselves of the delay of the accounting officers of the treasury to settle the accounts of those who have received public money, as officers under the government of the United States.

The opinion of the court was delivered by: Mr Justice M'lean delivered the opinion of the court.

A writ of error is prosecuted in this case, to reverse the judgment of the district court of Missouri, which exercise the powers of a circuit court.

In December 1824, the United States brought an action of debt against the plaintiff in error, to recover ten thousand dollars. The claim arises on a bond signed by the plaintiff as one of the sureties of Alpha Kingsley, who is alleged to have been appointed a paymaster in the army.

The bond was executed on the 7th day of February 1810, in which the plaintiff, and one Wilson P. Hunt, bind themselves jointly and severally, to pay to the United States the above sum. The condition of the obligation states, 'that the said Alpha Kingsley is about to be appointed a district paymaster,' &c. 'who will, from time to time be charged with funds, to execute and perform the duties attached to that station, for which he will be held accountable,' &c. and if he shall 'well and truly execute the duties of district paymaster, and regularly account for all moneys placed in his hands, to carry into effect the object of his appointment,' &c. 'then the obligation to be void.'

Several pleas were filed, and relied on in the defence.

In the first plea it is asserted, that from the time of executing the writing obligatory the said Kingsley did well and truly observe and fulfil the conditions of said bond, according to their tenor and effect.

The second plea contains similar allegations, except as to accounting for all moneys in the hands of said Kingsley; and by way of excuse, the plea states that he was removed from office on the first day of April 1815, for various causes assigned; and that on the fifteenth of September following, he reported himself to the treasurer of the United States as ready for settlement, but his accounts were not adjusted by the government; that at this time, and long afterwards, Kingsley was solvent, and able to pay the full amount of his defalcation: that no notice was given to him by the treasury department to account for moneys in his hands; nor was any notice given to the defendant below, until about the commencement of the suit. And it is alleged, that before the commencement of the suit Kingsley became insolvent.

In the third plea it is averred that Kingsley, neither at the time the bond was executed, nor at any subsequent period, was appointed district paymaster.

The fourth plea denies that any money came into his hands, as district paymaster.

To the second plea a demurrer was filed, and issues were joined on the third and fourth.

In their replication to the fourth and first pleas, the plaintiffs allege that a large sum of money came into the hands of Kingsley as district paymaster, and that on a final adjustment of his accounts in April 1823, there remained in his hands a balance unaccounted for, of forty-eight thousand four hundred and ninety-two dollars and fifty-three cents.

The rejoinders stated that Kingsley did regularly account for and pay to the plaintiffs all sums of money which came into his hands, as district paymaster.

The jury found the issues of fact for the plaintiffs, and that the defendant as paymaster was indebted to the plaintiffs in the sum of thirty-one thousand one hundred and ninety-seven dollars and fourteen cents. On this verdict, a judgment for ten thousand dollars and costs of suit was entered.

At the trial, exceptions were taken to the evidence offered, which being overruled, the following ...


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