Summary
Error to the Circuit Court for the District of Louisiana: the case being thus:
An act of March 3d, 1797,* enacts :
“Section 1. That when any revenue officer . . . shall neglect or refuse to pay into-the treasury tbe sum or balance reported to be due to the United States upon the adjustment of his accounts, it shall be the dutj' of the comptroller to institute suit for the recovery of the same, adding to the sum stated to be due, on such account, the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained.
“ Section 2. That in every case of delinquency, where a suit has been or shall be instituted, a transcript from the books and proceedings of the treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly.
“Section 4. That in suits between the United States and individuals, no claim for a credit shall be admitted upon trial but such as shall appear to have been presented to the accounting officers of the treasury for their examination, and by them disallowed.”
This act being in force, the United States sued Gaussen, executor of Elgee, in the court below, on a bond given in 1845, by Thomas Barrett, as collector of the customs at the port of New Orleans, in which bond Elgee was a surety. The declaration filed by the government referred to a transcript, which was annexed to and made part of it, from the books of the treasury, containing eight certain quarterly reports, numbered 5688, &c., of the first auditor, upon the quarterly accounts of Barrett, as admitted and certified by the comptroller and commissioner of customs, and “statements of differences” thereon ; and also copies of quarterly accounts current rendered by Barrett, the collector, himself. Each class of things covered the whole term that Barrett was in office.
The report of the first auditor and the statement of differences thereon were, as respected the report numbered 5688, in this form; the reports bearing the other numbers being in form very similar:
[No. 5688.] “ Treasury'Department,
First Auditor’s Office, June 2Jth, 1845.
“I have examined and adjusted the accounts of Thomas Barrett, collector of the customs for the district of New Orleans, State of Louisiana, under his bond, dated July 6th, 1844, commencing on the 25th day of July, and ending on the 30th day of September, 1844, and find that he is chargeable with the following sums, viz.:
To duties on merchandise to September 30th, 1844, i $168,645 76
duties on railroad iron imported in 1836, but the duties not credited by
the collector at that time, 2,803 24
$171,148 00
To duties on tonnage, to September 30th, 1844, 171 75
light money collected, “ “ ... 174 37
marine hospital money collected, to September 30th, 1844, 549 55
Deduct commissions thereon, at one per cent., 5 50 544 05
interest received on goods in store, to September 30th, 1844, 85 30
interest received on bonds for duties on railroad iron, . 662 44 747 74
amount received for fines, penalties, forfeitures, on account of Thomas Gibbes Morgan, late collector, collected and retained by him and placed to the creditor the United States, in account now stated, and for which said Morgan will receive credit, 16 21
$172,802 12
“I also find that he is entitled to the following credit, viz.:
By payments to inspectors, Ac., to September 30th, 1844,......$18 844 81
contingent expenses paid, “ ** “...... 783 46
disbursements for the revenue cutter Woodbury, to September 30th, 1844, . 3,956 97
“ “ “ “ Vigilant, “ “ 48 00
“ « “ boats, “ “ . . 840 00
“ in relation to appraisements, “ “ 1,177 62
balance of public store account, “ “ 710 25
debentures paid on merchandise exported, “ “ 15,994 45
fines, &c., costs of suits, *' 11 542 19
duties on merchandise refunded to correct errors, “ “ 672 15
duties on tonnage refunded to correct errors, “ “ 10133
amount paid for extra clerk hire in the office of the naval officer, . . . 368 00
amount paid George Royster, collector of Técbe, per order of the comptroller of the treasury, dated July 23d, 1844, and with which said Royster has been debited, per report No. 5387, ......... 200 OP
amount paid Willis H. Arnold, collector of Pearl River, per order of the comptroller of the treasury, dated 7th August, 1844, and with which said Arnold has been debited, per report No. 5324, ....... 75 24
By three months’ salary—
To the naval officer, to September 30th, 1844.......$62 50
“ surveyor of New Orleans, to September 30th, 2844, ... 62 50
“ surveyor of Bayou St. John, “ “ ... 62 50
u surveyor of Port Pontchartrain, “ “ ... 62 50
“ surveyor of Madisonville, “ “ ... 62 50
By three months and 17 days’ salary to the surveyor of Lafayette, from
14th June to 30th September, 1844, at $250 per annum, . ... 7417
--- 386 67
amount of warrant No. 3152, in favor of the treasurer, dated September 30th, 1844, 83,164 68
commissions on $127,816.22 at one per cent..........1,278 16
And that the balance due to the United States on the 1st day of October, 1844,
amounted to,............... 43,652 16
$172,802 12
“As appears from the statement and accounts herewith transmitted for the decision of the comptroller of the treasury thereon.
(Signed) “ William Collins,
“ First Auditor.
“ To James W. MoCttlloh, Esq ,
First Comptroller of the Treasury.”
Auditor's balance is,.............$43,652 16’
Add this sum, amount of difference, to the debit of the collector, as per cor* reeted statement,............. 10 40
Balance due to the United States,..... . $43,662 56
“Comptroller’s Office.
“Admitted and certified to the above as corrected 7th day of August, 1845.
(Signed) “J. W. McCulloh,
Comptroller.
“R. H. Gillett, Esq.,
Register of the Treasury.”
Thomas Barrett, under his bond, dated July Qth, 1844, in account with the United States.
Dr.
To duties on merchandise, to September 30lh, 1844, .... $168,645 76
duties on railroad iron imported in 1836, but the duties not credited by the collector at that time,....... 2,502 24
- $171,148 00
duties on tonnage, to September 30th, 1844,..... 171 75
light money collected, 41 44 174 37
marine hospital money collected........ 549 55
Deduct commission thereon, at one per cent.,..... 5 50
- 544 05
interest, received on goods in store, to September 30th, 1844,. . 85 80
' interest received on bonds for duties on railroad iron, . . . 662 44
- 747 74
amount received for fines, penalties, and forfeitures on account of Thomas Gibbes'Morgan, late collector, collected and retained by him and placed to the credit of the United States, in account now stated, and for which said Morgan will receive credit, . 16 21
$172,802 12
Cr.
By payments to inspectors, Ac., to September 30th, 1844, .... contingent expenses paid, 44 44 .... disbursements for the revenue cutter Woodbury, to September 30th, 1844, 44 “ “ « Vigilant, 44 44 u «* boats, 44 44 44 in relation to appraisements, 41 44 balance of public store account, 44 44 debentures paid on merchandise exported, 14 44 fines, Ac., costs of suits, 44 44 duties on m in the third quarter of the year 1844.
Dr.
1. To payments of d“bentures,...........$15,994 43
2. u to inspector, weigher, measurer, marker, and gauger, . . . 20,009 52
3. “ to revenue boats and boatmen,........ 840 00
<4. “ on account of contingent expenses....... 4,394 65
5. “ payments to clerks in the naval office,...... 368 00
6. “ naval officer and surveyors, for salary,...... 546 50
7. u payment on account United States revenue cutter "Woodbury, . 4,223 59
8. “ on account of appraiser’s office......... 1,177 62
9. To amount refunded to correct errors in duties on merchandise, . . . 773 48
10. To payment to deputy collector, Natchitoches, •....... 630 00
11. to collector at Téche,.......... 200 00
12. “ to collector at Shieldsborougb......... 75 24
13. “ on account United States schooner Vigilant...... 48 00
14. “ on account of public stores,. ........1,10114
To balance,............... 121,382 63
$171,764 80
Or. L==
By amount of duties on goods imported this quarter: $168,645 76 A. Less this amount unsettled entries, belonging to this quarter, the
deposits on which appear below,....... 6,896 72 - $161,749 04
Amount brought forward, . ......$161,749 04
By amount of deposits above mentioned, made to secure duties on entries belonging to this quarter,............ 8,973 00
By amount of duties on tonnage,........$185 55
B. By amount of light money,.......... 160 57 By amount of marine hospital dues,........$549 55 C. Less commission, one per cent., .........5 50 D. By amount of interest received,.......... E. By amount received on account of G. Dorsey, late collector, .... F. By amount on account fines, forfeitures, and penalties, this sum unpaid and due to T. G. Morgan, late collector,...... . . . 346 12 544 05 85 30 61 08 16 21 *171,764 80
Treasurer of the United States.
Dr.
To remittances, as follows:
Treasury notes and interest cancelled and returned to Secretary of Treasury, . $565 61
In certificates of deposits in Bank of Louisiana,....... 80,000 00
To commissions on remittances and payments to officer of the customs, Ac.,
$129,624 85,.............. 1,309 34
To balance,. .....i......... 39,507 58 By balance brought down from above account, ........$121,382 63
$121,382 63
By balance brought down, . ..........$39,507 58
Thomas Barrett,
Collector’s Office, Collector. New Orleans, 30tb September, 1844.
Indorsed: “The United States in account current with Thomas Barrett, from 25th July to 30th September, 1844. E.”
In one of tlie reports of the auditor there was an entry thus:
“I also find that he is entitled to credit, as follows,' by amount of the following sums :
Balance of his account of official emoluments from 1st July, 1844, to 12th October, 1845, as per report No. 6771,...........$16,529 75”
There was no report No. 6771 in evidence.
The whole of these records (that is to say, reports of the first auditor, the statement of differences, and the quarterly accounts current of Barrett himself), were attached together and certified by one certificate of the register and by one impression of the seal of the treasury, to be true copies of the said reports of the first auditor, of the said statement of differences, and of the said quarterly accounts current of Barrett.
On the trial the government offered as evidence the copies of the reports of the First Auditor, numbered respectively 6688, &c., and also of the statements of differences thereon, “ all of said papers,” said the bill of exceptions, “ being fastened together as a whole and embraced in one certificate; all of which more fully and at large appears by the said transcript of shid report and adjustment of account filed in this cause with the plaintiff’s petition therein.”
The defendant, “while making no objection to the form or substance of the certificate by which the authenticity of such transcript was attested,” objected to the same on the grounds—
“That the act of the 3d of March, 1797, which makes transcripts from the books and proceedings of the treasury evidence, only applies to public defaulters in terms, and, being in derogation of common right and penal in its character, cannot be extended by construction so as to make such transcripts evidence against the sureties of such defaulters or the legal representatives of deceased sureties.
“That the said reports, which, together with the quarterly returns, constituted an entire document (said reports and returns being fastened together and authenticated by one and the same certificate), were fragmentary, incomplete, and partial.
“ That the reports and statements of differences charged Barrett with gross sums and balances without any detail or exhibition of the items of which they were composed, as, for instance, in report No. 5688, a gross sum of $2502.24 is charged against him for ‘duties on railroad iron imported in 1836, and not credited by the collector at the time.’*
“That it disallowed gross sums, and subtracted gross sums on and from the credit side of Barrett’s account without any detail or specification of the items disallowed. That, ex gr., by comparing quarterly return for the third quarter of 1844 with report No. 5688 and the statement of differences, it will appear that Barrett claimed credit for 84394.65 for contingent expenses * He was allowed only $783.46† in the report, 83611.19 being disallowed, but the detail of the items disallowed, as appeared by the statement of differences, amounts to only 83239.13,‡ and there is no detail or specification of the balance of the 83611.19 disallowed, nor is there anj' information or explanation in the transcript of what composes that balance, or why it was disallowed.
“ And further, that the said reports and statements of differences did not contain or exhibit the accounts as they were presented to and acted upon by the accounting officers of the department, nor their action nor their proceedings relative 'thereto.”
The court held the objections good, and rejected the evidence.
The government afterwards offered in evidence certified copies of the several quarterly statements of accounts rendered by Barrett himself to the United States, “which said certified copies aforesaid were and are on file in the suit, having been filed with the petition and contained in the said document, marked and already made part of this bill of exceptions.”
This evidence was objected to on the ground that the said statement was not legal proof of the existence of a debt by Barrett, did not tend to prove the same, aud was not competent evidence thereof, and that the same were fragmentary and incomplete. This evidence was excluded, aud the plaintiff1 excepted to the ruling.
Verdict and judgment having gone for the defendant, the government brought the case here.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
