Moses v. United States

after stating the facts, delivered the opinion of the court.

Yarious errors are assigned in this court, the first two of which allege that error was committed: First, in admitting the alleged bond in evidence, there being a material variance in date between the instrument offered and the one described in the declaration ; Second, in- admitting the alleged bond in evidence when there ivas no evidence tending to prove that it was sealed by W. B. Móses.

(1). "We think there was no material variance as claimed by the defendants. The first count in the declaration states the date of the bond as the 2d of April, 1878. The bond as offered in evidence is dated the — day of March, 1878: In

It is seen by reference to the foregoing statement of facts that the bond was finally sent back by Howgate to the Secretary of War, with seals attached, in a' letter dated April 1, 1878, and that it was approved, that is, accepted, April 2, 1878. It is settled that a bond of that character takes effect on the date of acceptance, and it is from that time that it speaks. United States v. Le Baron, 19 How. 73 ; same case, on another review, 4 Wall. 642 , 647.

There is no claim made that there ever was any other bond than the one put in evidence, nor that the defendants were surprised or in -any way misled by the difference in the date of the bond from the date alleged in the declaration. The objection is one of the most extreme technicality, and does not in any way reach the merits of the case.

The case of Cooke v. Graham's Administrator, 3 Cranch, 229 , is cited by the defendants’ counsel as authority for the claim that this variance is fatal. The question there arose upon a demurrer, and the decision is based upon the old and highly technical rules of pleading. Marshall, Chief Justice, said that the plaintiff having declared upon a bond, dated the

In Nash v. Towns, 5 Wall. 689 , 698, Mr. Justice Clifford, in delivering the opinion of the court upon a question of variance,said': “Formerly the rule in that respect was applied with great strictness, but the modern decisions are more liberal and reasonable. Decided cases may be found, unquestionably, where it has been held that very slight differences were sufficient to'constitute a fatal variance. Just demands were often defeated by such rulings until Parliament interfered, in the parent country, to prevent such flagrant injustice. Federal courts have possessed the power from their organization to the present time to amend such imperfections in the pleadings, except in cases of special demurrer set down for hearing, and are directed to give judgment according to law and the right of the cause. Becent statutes in the States also confer a liberal discretion upon courts in allowing amendments to pleadings, and those statutes, together with the change they have superinduced in the course of judicial decision, may be said to have established the general rule in the state tribunals that

(2). We are also of opinion that there was no error in admitting the bond in evidence, under the objection that at the time it was admitted there was no evidence tending to prove that it was sealed by Mr. Moses. Passing the objection raised by the defendants in error as to the form of pleadings, and, referring to the foregoing statement of facts, it appears that at the time the. bond was first tendered to the War Department it had been signed and acknowledged by the principal and his sureties, and the latter had each made an affidavit justifying as to his financial ability to become such surety, and that Howgate had presented the bond (without seals) to the Secretary of War, as in compliance with the directions of the War Department.

The instrument being incomplete when first sent to the department, there was no acceptance of the same at that time. Its return by the department with the objection stated did not in any sense make Howgate the agent of the Government to procure seals to the instrument; the Government undertook no such mission, and it was not under any obligation so to do. It stood indifferent whether Howgate procured those seals or not; he was under obligation to present a proper bond to the department, and if he did not do so, the department would take its own measures consequent upon that failure.

We have a case, therefore, where the proof is full as to the original signing of the bond by the sureties; no pretence of any. forgery or any irregularity in that respect, the only defect being the lack of seals. This defect was pointed out by the officer of the Government, and Howgate took back the bond to have the seals put on, and in due time he returned it with the seals upon it. There is no direct evidence as to when or where the seals were put on or as.to the actual consent of the

When the officers of the Government received this bond for the second time, and the seals wrere then found upon it, there was nothing to attract their suspicion that the bond was not a proper instrument, executed in due form by all the obligors. The fact that it had once been presentéd without seals, and then when the'objection was taken to that defect and the instrument returned to Howgate on that account, it was thereafter again sent in by Howgate, one of the obligors, with the seals affixed thereon, was not a circumstance of suspicion nor one to raise any doubt as to the consent of the other obligors to the placing of the seals upon the instrument signed by them. Being originally signed by them for the purpose of acceptance by the Government, there is no fact upon which a presumption could be based that they would refuse to make the instrument complete by adding their seals when it was found that they had been theretofore omitted.

The cases cited by counsel for the defendants do not impair the strength of this principle, nor do away with the presumption. Among the cases cited are Follet's Heirs v. Rose, 3 McLean, 332 . The case involved but a question of fact, which was submitted to a jury, whether an instrument that was produced on the trial and had no seals attached to it, had had them attached when the instrument was originally executed many years prior thereto. Edelin v. Sanders, 8 Maryland, 118, 129, contains nothing inconsistent with the presumption that the seals in this case were affixed with the consent of the obligors. ■

In State v. Humbird, 54 Maryland, 327, the bond sued on had no seal opposite the name of one of the obligors, and there was -no evidence that he had adopted the seal of any of the other parties to the instrument. It was held that the instrument was not his bond, because, in fact, there was ho evidence of any seal belonging to him ever having been affixed, and no such seal was on the instrument when it was produced on the trial.

•In Barnet v. Abbott, 53 Vermont, 120, the instrument when executed had no seal, but when delivered to the selectmen it was sealed. The evidence showed that the sureties did not affix the seals themselves, and in fact authorized no one to affix them to the instrument. The court held that it was defectively executed. (No evidence of this nature is to be found in the case at bar.)

In United States v. Linn, 15 Pet. 290 , 311, the second and third counts of the declaration were upon “ an instrument in writing.” It was not averred that it was under seal, The instrument was executed under an act of Congress providing for the execution of a bond. ■ The defendant demurred to the two counts and the question was certified to this court upon a certificate of a division of opinion: (1) as to whether the obligation set out in the declaration, being without seal, was a bond within the act of Congress; and (2) whether such instrument was good at common law. It was held that the instrument was not a bond within the act, but that it was good at common law. The case went down for further proceedings, during which a trial was had and the case.came again before this court on writ of error, and it is reported in 1 Hoiv. 104. It seems that after the case went down the pleadings in the case were altered, and finally a plea was filed on the part of the defendants alleging merely that seals were affixed-to the bond without the consent of the defendants, without alleging that it was done with the knowledge or by the authority or direction of the plaintiffs. It was held in the court below that the special demurrer to the plea was bad and the court gave judgment for the defendant, adjudging that the plea was sufficient in law. This court held otherwise, and it was upon the principle that the placing of the seals thereon after the execution of the instrument was a material alteration of it, but if done by a stranger and the instrument was valid without the seals and

In United States v. Nelson, 2 Brock. 64 , the parties to the bond were sureties, and signed in blank before the principal, but with full knowledge of the purpose for which the bond was to be executed. The blanks were afterwards filled up in their absence Avithout express authority from them, and given to the officers of the United States, who accepted it. It was held by Marshall, Chief Justice, “Avith much doubt and with a strong belief that this judgment will be reversed,” that the law is for defendants. Under the cases of Dair, 16 Wall. 1 , and Butler, 21 Wall. 272 , it Avould seem as if the doubts of the great Chief Justice were not entirely misplaced.

Not one of these cases lays down any principle Avhich shows the ruling of the court beloAV in this case to have been erro- . neous.

We come back, then, to a case Avhere the proof was uncontradicted of a signing of an instrument, reciting that it was sealed (Avhen in fact it Avas not) and that when sent to the obligee it was returned in order that seals might be affixed. It Avill, in the absence of evidence to thé contrary, be presumed, when the bond is again presented Avith seals, that they had been inadvertently omitted, and that the sureties had consented to their being placed upon the instrument in order to make it effective, a purpose which they must have originally intended Avhen they executed it. Any other presumption Avould tend to sIioav that the sureties, when signing the instrument, intended an idle thing; that is, to sign a paper Avhich Avould not ansAver the purpose for Avhich it Avas then executed, or else they intended a fraud upon and to act dishonestly towards, the Government. Neither presumption. should be indulged in. The presumption called for under' the • circumstances is the one Avhich is based upon the vieAV that the principal and the sureties intended to act honestly and to execute an instrument which would be accepted by the Government.

Upon the case as it stood there was no question to be submitted to the jury upon this bond. The presumption of a

(3). Another objection to the validity of the bond is taken by the defendants, which is, that the bond was extorted colore officii, and is void for that reason. The defendants allege that there was no statute or regulation directing or permitting the exaction of a bond from an officer of the Army assigned to duty in the Signal Service at Washington and discharging the duties of “ property and disbursing officer,” and that, therefore, the bond exacted from Lieutenant Howgate was void. Defendants’ counsel offered to prove that some time after he had been assigned to his position the Secretary of War, through his chief clerk, directed that Lieutenant Howgate, before receiving moneys upon requisitions made by him, should file a bond as particularly stated, and if he failed to file such bond that he should be relieved from duty as disbursing officer; that Lieutenant Howgate protested against this requirement for various reasons which he stated to the chief clerk, who informed him that the Secretary of War had made his decision upon the question involved after due deliberation, and had directed that unless he filed the required bond he should be relieved from duty as disbursing officer; that after receiving this information from the chief clerk, Lieutenant Howgate forwarded to the War Department the bond upon which this suit is brought'. The evidence was rejected and exception taken by counsel for the defendant. It is now urged that such evidence 'was material; that it showed that the bond was improperly and illegally extorted from Lieutenant How-gate under fear of losing his position as property and disbursing officer, and that the bond is therefore void.

We think the evidence was properly excluded, although there w.as no statute specially providing for the execution of a bond by one occupying the position of Lieutenant Howgate.

It was held in the case of United States v. Tingey, 5 Pet. 115 , that the United States had a right to take a bond to' insure the faithful performance of duty on the part of an individual or officer where such bond was voluntarily given, and was not in violation of any provision of law. . The particular .bond in that case was held void as being extorted under color of office because it was in plain violation of the statute in regard to giving such bond, and it was demanded of the party upon the peril of losing his office. The court said under those circumstances that the bond was an illegal instrument, “for no officer of the Government has .a right, by color of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with a condition different from that prescribed by law.” The court also said however: “ That a voluntary bond taken by authority of the proper officers of the Treasury Department, to whom the disbursement of the public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursery of public moneys, is a binding contract between him and his sureties and the United States ; although such bond may not be prescribed or required by any positive law. The right to take such a bond is in our view an incident to the duties belonging to such a department; and the United States having a political capacity to take it, we see ho objection to its validity in a moral or a legal view.” See also United States v. Maurice, 2 Brock. 96 ; Jessup v. United States, 106 U. S. 147 , where the same views are set forth.

The consideration or the condition of the bond must not be in violation of law; it must not run counter to any statute; it must not be either malum, prohibitum or malum in se. Otherwise and for all purposes of security, a bond may be valid though no statute directs its delivery.

Wé do not understand by the decision in Peters, above cited, that the meaning of the term “ voluntary bond ” is that the bond must have been offered and pressed upon the Government when never asked for or demanded by it. It is a voluntary

The power of the Government to take bonds in cases of this nature in the absence of any law or general regulation to that effect, but by direction of the head of a department, was recognized again in the case of the United States v. Bradley, 10 Pet. 313 , 359. In that case the bond taken contained conditions beyond those provided for in the act of Congress, yet it was held’ that those conditions which were within the act were valid and could not-be regarded as extorted from the obligor, although they were set forth in the same instrument which contained other and illegal conditions. The case of Tingey (supra) was cited by the court and approved as to the principle that the United States may take a bond as security, etc., when not in violation of any statute.

• .In this case we think the bond was a voluntary bond in the sense that it was not illegally extorted from the defendant Howgate, under color of office or by threats from a superior officer; that the United States through the Secretary of War had the right to demand a bond with conditions such as the bond in question contains, and that it did not cease to be a voluntary bond merely because Lieutenant Howgate did not gratuitously and without request proffer it and ask that it might be received, or because he was reluctant to give it, and only gave it upon the demand of the Secretary. Under the facts developed in this case, situated as Lieutenant Howgate was with respect to the public moneys, the United States,

We are, in view of all.the facts, of opinion that the refusal to admit the evidence offered by defendants’ counsel upon this issue did not constitute any error on the part of the learned trial court.

(4). Another objection taken by the defendants is that this bond is void, for uncertainty, because there was no law creating any such position as that “ of property and disbursing officer of the Signal Service, U. S. A.,” nor any law or army regulation defining the duties of any such officer.

The Signal Service Corps as a branch of the Army was known during the war. After its close and as long ago as 1870, Congress, by a joint resolution approved on the 9th day of February of that year, authorized the Secretary of War to provide for the taking of meteorological observations at the military stations and other points in the interior .of the continent, and forgiving notice on the northern lakes and seaboard of the approach and course of storms'. On. the 28th of February, 1870, the Secretary of War addressed a written communication-to Brigadier General Meyer, Chief Signal Officer of the Army, in which, after embodying the joint resolution, as above referred to, the Secretary of War continued: “In view of this enactment, I have to inform you that you as Chief Signal Officer of the Army are charged with the duties to arise under the provisions of the same, subject to the direction of the

.The Revised Statutes also authorized, § 161, “The head of each department to prescribe regulations not inconsistent with law for the government of his department, the conduct of its officers and clerks, and distribution and performance of its business, and the custody and use-and preservation of the records, papers and property pertaining to it.” Section 1094 of the Revised Statutes recognized the existence of the Chief Signal Officer of the Army of the United States, and section 1195 gave to that officer the rank of colonel of cavalry, and directed that under the direction of the Secretary of War he should have charge of all signal duty and of all books, papers and apparatus connected therewith.

Upon this evidence we think it apparent that in the proper conduct of his office the Chief Signal Officer had the right to designate one of the officers detailed for service under him as a “property and disbursing officer,” to whom should belong,

The principle decided in United States v. Bradley, 10 Pet. 343 , that bonds and other deeds may be, and in many cases are, good in part and void for the residue, where the residue is founded in illegality but not malum, in se, may be invoked, in this case. The two conditions of the bond were, (1) that Lieutenant Howgate should carefully discharge the duties of

Counsel for defendants ask “ what proof was there that it. was the duty of Howgate, under a bond with a penalty of $12,000, to receive .and disburse the enormous sums charged against him in the ‘ consolidated transcript,’ aggregating the sum of $1,132,742.32, in the brief period of about two years ? ” The attention of the War Department had been called to the Signal Service Office at Washington by reason of a requisition for fifty thousand dollars, in February, 1878, to be paid to Lieutenant Howgate as disbursing officer of the Signal Service. The answer to such requisition given from the War Department, among other things, was that “ requisitions for advances should be for a less amount than fifty thousand dollars, or should not exceed twenty-five thousand dollars at any one time.” The acts of Congress making appropriations for the Signal Service also show that a large amount of public moneys would be disbursed in the course of each year through the office of the Chief Signal Officer of the Army.How much- that sum would reach it was not necessary to know accurately. A bond exacted for the sum of $12,000 was very likely demanded in view of the fact that frequent settlements were customary between the officer and the Treasury Department, and that requisitions were not to be made for any enormous sum at any one time. With such checks

So far as this causé of .action is concerned, the bond is not void for uncertainty, and the exception of the defendants is unsustained.

(5). The defendants also claim the existence of error in the decision of the court below, that the'settlement of Howgate’s accounts was not a bar to the action. The evidence shows that his accounts had been regularly stated and passed by the accounting officers of the Treasury, and a certificate given him of non-indebtedness. These facts the defendants say were matters of record in the Treasury Department, and they urged that the plaintiff should therefore be estopped from maintaining this action.

To the same effect is the objection that the Government is estopped from maintaining this suit by the inequitable representations and conduct of their agents which misled the surety Moses, to his.prejudice.

It is necessary to see what this alleged settlement was that is set up by the defendants as a bar to the maintenance of this action. It is seen by reference to paragraph 2391 of the army regulations, which is set forth in the statement of facts, that it was necessary to obtain certificates of non-indebtedness before an officer retiring from the service could obtain final payment of his salary. Immediately, upon his resignation being offered, December 7, 1880, Lieutenant Howgate pro

The last certificate, signed by the Third Auditor, reads as follows:

“ Certificate of Non-indebtedness.

“Treasury Department,

“ Third Auditor’s Office, April 26, 1881.

“It is hereby certified that the accounts and returns of H. W. Howgate, Lt. 20 th inf., late acting signal officer, U. S. A., have been examined, found correct and are closed.

“ This certificate is granted to satisfy the pay department that the above-named officer is not indebted to the United States on the- books of this office at the date hereof.”

Certificates similar in their nature were obtained from the offices of the Chief of Engineers, the Quartermaster, the Ordnance Department, Second Auditor’s Office, the Paymaster’s and the Commissary General’s Departments. Each certified substantially that Howgate “ was not charged on the books of that office as a debtor to the United States,” or “ that his returns had been received, examined and found correct,” or “that there were no charges remaining against him. on the books of the office.”

There is no proof that any one of these certificates was ever seen by the sureties or was known by them to exist, nor is there evidence that a settlement of any nature had ever been made between the principal and his sureties based upon or by reason of the certificates, nor that the condition of the sureties had been at all changed because of the existence of the certificates or any one of them. The certificates were, of course, based only upon what appeared after an examination

It is urged, however, that even if the certificates and books upon which they were based would ordinarily be open to explanation and would not be regarded by the courts as conclusive, the rule vis nevertheless changed in this case by the action of the officers of the Government, by reason of which the Government is estopped from showing the falsity of the ■certificates and the forgery of the vouchers. The Govern'ment is charged with laches in failing to take proper means of enforcing its demands against Howgate, and in failing to promptly notify the sureties of the fact of his defalcation and of their liability to respond on that account to the extent of the. penalty- of th¿ bond.

As late as April 26, 1881, the Government was ignorant of any cause of suspicion against Lieutenant Howgate, for on that ■ date the Third Auditor of the Treasury Department certified to the correctness of Howgate’s accounts and returns. Between that time and the 24th of August, 1881, the suspicions of the officers of the Government were aroused, an examination of the books was made, other investigations were entered upon, and the facts of the defalcation discovered, and on the last-named day a suit was commenced against Howgate for the pur- . pose of recovering the sum of $101,257.08. The “ particulars of demand,” accompanying the declaration, showed that the suit was commenced to recover money unlawfully drawn and obtained by Howgate from the Treasury of the United States

The suit had been commenced in the Supreme Court of the' District of Columbia, and Howgate, the defendant, and Moses, one of the sureties on his bond, were residents of the city of Washington in that District, and had been for many years. It is impossible to suppose that the fact of the alleged defalcation of Howgate was unknown to Moses. The record shows that a personal service upon Howgate was not obtained for the commencement of the action against him, which would imply an inability to discover him within the District or else his absence therefrom. The affidavit used upon obtaining the attachment showed that Howgate was aware of the investigation going on in relation to his accounts, and that with such knowledge he suddenly, and without declaring any other business or reason for leaving, left the District without indicating how long he would remain or when, if ever, he would return. The presumption is very strong from all these circumstances that Moses, after Howgate’s departure from Washington, knew of the alleged defalcation and of the suit brought by the Government against Howgate. There can be no well-, founded claim that such suit was not commenced promptly and there is no evidence that it was not prosecuted with due diligence, even though no answer had been put in up to the time -when the judgment was taken. Various reasons might have existed for the delay between the commencement of the action and the entry of judgment, which cannot be said to have been unusual. There is nothing in the fact that the Government sued Howgate alone, without calling upon the sureties in the bond which would operate to the injury of the sureties. And there is no evidence that the sureties suffered any damage by reason of any action or lack of action on the part of the Government.

As to the certificates of non-indebtedness., there is no legal

(6). The defendants also took exception to the decision of the court below in permitting plaintiff to introduce certain transcripts of the books and proceedings of the Treasury Department for the purpose of proving the actual state of the accounts between the Government and Howgate. These transcripts were objected to on two grounds : (1) that th«y showed on' their face that they were mere statements of balances and not the entire account between the parties; (2) that they showed that the government officers had made a restatement of Howgate’s account after he ceased to.be property and disbursing officer, and that there was nb authority for making such restatement, and that it was not evidence against the defendants. We think that neither objection is well founded.

The transcripts were received under section 886 of the Revised Statutes of the United States, and were certified to under the hand of the Secretary of the Treasury and the seal of .the Treasury Department, on the.l9fch'of November, 1881. There was also a certificate from the Third Auditor of the Treasury Department attached to the papers and certifying that .they were transcripts from the books and proceedings of the'Treasury Department, and that the papers annexed thereto were true copies of the originals on file and of the whole of said originals. Then followed a copy of the bond, and then another certificate from the Third Auditor that he had “examined and adjusted the account of H. W. Howgate, Lieutenant, 20th Infant^, property and disbursing officer, Signal Service, U. S. Army, from April, 1878, to September, 1880, and found the balance as follows ” (giving the balance for each fiscal year for the years 1879, 1880 and 1881, and resulting in a balance due the United States of $133,255.22). This last certificate thus made by the Third Auditor does not purport to certify to a copy of the whole account between the Government and Howgate. The account which first follows the certificate is termed a “ consolidated settlement,” and is simply a summary of the amount, giving only the total amount due the United States for each- of the fiscal years stated. It does not purport

We think the certificate as to those transcripts was entirely sufficient, and the transcripts themselves were admissible as sufficient transcripts from the books and proceedings of the Treasury Department within section 886, Revised Statutes, and that the certificate which certified that the papers annexed to the transcript were true copies of the originals on file, and of the whole of such originals, was a full compliance with law. United States v. Pinson, 102 U. S. 548 ; United States v. Bell, 111 U. S. 477 .

As to the objection that the transcripts show on their face that the accounts therein referred to had been restated since the acceptance of the resignation of Lieutenant Howgate, and that there was no authority to make, such restatement, we think the objection untenable. As has been heretofore stated, there had been no actual and formal settlement between the Government and Howgate, and no admission made by the Government for the purpose of discharging him and his sureties

It therefore appears that this so called restatement of the account was no mere gratuitous and unsolicited work on the part of the clerks of the Treasury Department, but that the restatement was made substantially by direction of the Secretary of War, under the supervision of the Second Comptroller of the Treasury, and'asked for by the solicitor of that department, and it was all done that from the books and proceedings of the Treasury Department.a transcript might be made that would show the actual state of the accounts between the Government and Howgate after excluding these false and forged vouchers upon Avhich he had obtained credit and by means of Avhich he

(7). One other objection was taken upon the trial, and that was to the admission of the judgment recovered against How-gate by the Government.

Neither surety was a party to that judgment which was solely against Howgate, and the record in that case was admitted in evidence under the objection and exception of the defendants. We are of opinion that the judgment was properly admitted in evidence against the surety. It proved, at least,prima facie a breach of the bond by showing the amount of public moneys which Howgate the principal had failed to faithfully expend and honestly account for. It was far beyond the penalty in the bond, and, unexplained, the judgment was sufficient evidence of the breach of condition. Drummond v. Executors of Prestman, 12 Wheat. 515 ; United States v. Allsbury, 4 Wall. 186 ; McLaughlin v. Bank of Potomac, 7 How. 220 ; Stovall v. Banks, 10 Wall. 583 ; Washington Ice Co. v. Webster, 125 U. S. 426 .

This completes the examination of the various questions which were argued at the bar by counsel for the defendants. Other questions have been raised in the briefs and have received our careful attention. We find nothing in the record which justifies a reversal of the judgment, and the same is, therefore,

Affirmed.