UNITED STATES V. JONES, 33 U. S. 375 (1834)

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U.S. Supreme Court

United States v. Jones, 33 U.S. 8 Pet. 375 375 (1834)

United States v. Jones

33 U.S. (8 Pet.) 375


A Treasury transcript, produced in evidence by the United States in an action on a bond for the performance of a contract for the supply of rations to the troops of the United States, contained items of charge which were not objected to by the defendant. The defendant objected to the following items as not proved by the transcript: "February 19, 1818, for warrant 1680, favor of Richard Smith, dated 27 December, 1817, and 11 February, 1818, $20,000."

And on 11 April of the same year, another charge was made "for warrant No. 1904 for the payment of his two drafts, favor of Alexander McCormick dated 11 and 17 of March, 1818, for $10,000." And on 14 May of the same year, a charge was made "for warrant No. 2038, being in part for a bill of exchange in favor of Richard Smith for $20,832.78." And one other warrant was charged June 22 "for a bill of exchange in favor of Richard Smith dated June 22,1810, $4,000, and also a warrant to Richard Smith, per order, for eight thousand, dollars." These items, the circuit court instructed the jury, were not sufficiently proved by being charged in the account and certified under the act of Congress.

By the court:

"The officers of the Treasury may well certify facts which come under their official notice, but they cannot certify those which do not come within their own knowledge. The execution of bills of exchange and orders for money on the Treasury, though they may be connected with the settlement of an account, cannot be officially known to the accounting officers. In such cases, however, provision has been made by law by which such instruments are made evidence without proof of the hand writing of the drawer. The act of Congress of 3 March, 1797, makes all copies of papers relating to the settlement of accounts at the Treasury, properly certified, when produced in court annexed to the transcript, of equal validity with the originals. Under this provision, had copies of the bills of exchange and orders on which these items were paid to Smith and McCormick been duly certified and annexed to the transcript, the same effect must have been given to them by the circuit court as if the original"

had been produced and proved. And every transcript of accounts from the Treasury which contains items of payments made to others on the authority of the person charged should have annexed to it a duly certified copy of the instrument which authorized such payments. And so in every case where the government endeavors by suit to hold an individual liable for acts of his agent. The agency on which the act of the government was founded, should be made

to appear by a duly certified copy of the power. The defendant would be at liberty to impeach the evidence thus certified, and under peculiar circumstances of alleged fraud, a court might require the production of the original instrument.

Page 33 U. S. 376

This, however, would depend *upon the exercise of the discretion of the court, and could only be enforced by a continuance of the cause until the original should be produced.

The following item in the Treasury transcript was not admissible in evidence.

"To accounts transferred from the books of the Second Auditor for this sum standing to his debit under said contract on the books of the Second Auditor transferred to his debit on those of this officer, $45,000."

The act of Congress, in making a "transcript from the books and proceeding of the Treasury" evidence, does not mean the statement of an account in gross, but a statement of the items, both of the debits and credits, as they were acted upon by the accounting officers of the department. On the trial, the defendant shall be allowed no credit on vouchers, which have not been rejected by the Treasury officers, unless it was not in his power to have produced them, and how could a proper effect be given to this provision, if the credits be charged in gross? The defendant is unquestionably entitled to a detailed statement of the items which compose his account.

The defendant, in an action by the United States where a Treasury transcript is produced in evidence by the plaintiffs, is entitled to the credits given to him in the account, and in claiming those credits, he does not waive any objection to the items on the debit side of the account. He is unquestionably entitled to the evidence of the decision of the Treasury officers upon his vouchers, without reference to the charges made against him. And he may avail himself of that decision without in any degree restricting his right to object to any improper charge. The credits were allowed the defendant on the vouchers alone, and without reference to the particular items of demand which the government might have against him. And the debits as well as the credits must be established on distinct and legal evidence.

The defendant is entitled to a certified statement of his credits as allowed by the accounting officers, and he has a right to claim the full benefit of them in a suit by the government, and under no circumstances has the government a right to withdraw credits which have been fairly allowed.

The law has prescribed the mode by which Treasury accounts shall be made evidence, and while individual may claim the benefit of this rule, the government can set up no exemption from its operation. In the performance of their official duty, the Treasury officers act under the authority of law; their acts are public, and affect the rights of individuals as well as those of the government. In the adjustment of an account, they sometimes act judicially, and their acts are all recorded on the books and files of the Treasury Department. So far as they act strictly within the rules prescribed for the exercise of their powers, their decisions are, in effect, final, for if an appeal be made, they will receive judicial sanction. Accounts amounting to many millions annually come under the action of these officers. It is therefore of great importance to the public and to individuals that the rules by which they exercise their powers, should be fixed and known.

In every Treasury account on which suit is brought, the law requires the credits to be stated, as well as the debits. These credits the officers of the government cannot properly either suppress or withhold. They are made evidence in the case, and were designed by the law for the benefit of the defendant.

Page 33 U. S. 377

In April 1821, the plaintiffs instituted an action of debt against Benjamin G. Orr on a bond, joint and several, executed by Benjamin G. Orr, Alexander McCormick, and William O'Neale to the United States on 21 November, 1816, in the penal sums of $60,000 with the condition annexed that

"If the said obligor, . . . shall in all things well, and truly observe, perform, fulfill, accomplish, and keep all and singular the covenants, conditions, and agreements, whatsoever, which on the part and behalf of the said Benjamin G. Orr, his heirs, executors or administrators, are or ought to be observed, performed, fulfilled, accomplished, and kept, comprised or mentioned in certain articles of agreement or contract bearing date 21 November, 1816, made between George Graham, acting Secretary of War, and the said Benjamin G. Orr concerning the supply of rations to the troops of the United States within the Mississippi territory, the State of Louisiana, and their vicinities north of the Gulf of Mexico, according to the true intent, meaning, and purport of the said articles of agreement or contract."

The contract was dated on 21 November, 1821, was made by Orr with the Acting Secretary for the Department of War, and stipulated, that Orr, his heirs, &c.,

"shall supply and issue all the rations, to consist of the articles hereinafter specified, that shall be required of him or them for the use of the United States at all and every place or places where troops are or may be stationed, marched, or recruited within the limits of the Mississippi Territory, the State of Louisiana, and their vicinities north of the Gulf of Mexico, thirty days' notice being given of the post or place where rations may be wanted, or the number of troops to be furnished on their march, from 1 June, 1817, until 31 May, 1818, both days inclusive."

The defendant Orr having died after the institution of the suit, it was proceeded in against Walter Jones, his administrator de bonis non, at May term 1829, who took defense in the action, and after oyer of the bond and condition, and the contract, pleaded performance, &c.

The plaintiffs replied that Orr did not perform the contract

Page 33 U. S. 378

entered into by him in that, although the United States advanced and furnished him with large sums of money on account of the contract, and although the accounts of the said Benjamin G. Orr in relation to the articles of agreement aforesaid have been duly and finally settled by the accounting officers of the government of the United States, and upon the said settlement there was found to be due to the United States, from the said Benjamin, the sum of $3,654.46, of which the said Benjamin had due notice.

To this replication there was a rejoinder and issue, and on 31 December, 1831, the cause was tried and a verdict and judgment rendered for the defendant.

The plaintiffs filed two bills of exception.

The first exception set forth the evidence, produced and relied upon by the plaintiffs, to be an account stated by the accounting officers of the Treasury against Orr under the contract referred to in the bond, upon which the balance of $6,654.46 was claimed, and which, according to that account, was due to the United States. The plaintiffs produced no other evidence. The whole amount of debts in the account was $146,078.24. The defendant admitted some charges in the account for moneys paid to Orr by warrants of the Treasury amounting to $28,500, but objected to the competency of the account to charge him with any other item. The charges admitted were

"1817. June 9, for warrant No. 521, received by him on account $10,000; Sept. 18, for part 953, do. $5,000; Oct. 6, for do. 1072, do. $8,500; Aug. 1, for do. 2419, do. $5,000 -- $28,500."

Among the items objected to were the following:

"1818. Feb. 19, for warrant No. 1660, favor of Richard Smith, dated 27 Dec., 1817, and 11 Feb., 1818 -- $20,000."

"1818. April 11, for warrant No. 1904, for the payment of his two drafts, favor of Alexander McCormick, dated 11 and 17 March, 1818, for $5,000 each -- $10,000."

"1818. May 14, for warrant No. 2038, being in part of a bill of exchange in favor of Richard Smith for $20,000 -- $12,832 78. "

Page 33 U. S. 379

"1818. June 22, for warrant No. 2210, for a bill of exchange in favor of Richard Smith, dated 22 June, 1818 -- $4,000."

"1818. June 22, for warrant No. 2420, to Richard Smith, per order -- $8,000."

"1818. June 22, to accounts transferred from the books of the Second Auditor for this sum, standing to his debit under said contract, on the books of the Second Auditor, transferred to his debit on those of this office -- $45,000."

The circuit court instructed the jury that the accounts were not competent to charge the defendant with the items objected to, and the plaintiffs excepted to this instruction.

Second exception. The defendant then insisted that he was entitled to credit for the several sums credited to Orr in the account for supplies in execution of the contract and prayed the court so to instruct the jury, to which the plaintiffs objected unless jury were also instructed that the defendant could not rely on the account and claim the credits therein without making the items of charge therein contained also evidence before the jury. The court gave the instructions prayed for by the defendant without adding the further instruction prayed for by plaintiffs, to which instruction and refusal the plaintiffs excepted.

The plaintiffs prosecuted this writ of error.

Page 33 U. S. 380

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