Majority
p. 507UNITED STATES FIDELITY & GUARANTY COMPANY v. UNITED STATES. No. 179. Argued April 23-26, 1909. Decided May 24, 1909.
Syllabus
ERROR TO THE CIRCUIT COURT “OF. APPEALS EOR THE- EIGHTH ■ CIRCUIT.Judgment of thé lower court against a surety on the official bond of ®n Indian agent' affirmed, without opinion by. a divided court. '
Quiere, Whether failure to give credit for vouchers because of misrepre
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sentation as to part of the amount represented by the vouchers is the enforcement of a statutory rule of accounting under the act of July 4, 1884, c. 180, 23 Stat. 76 , p. 97, or the imposition of a penalty.
This was an action by the United States against the Guaranty Company to recover from it as surety on the official bond of one Bridgeman, an Indian agent. The facts aré stated in the opinion of the Circuit Court of Appeals and appear in the extract therefrom quoted in the margin.[1]
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The Circuit Court and the Circuit Court of Appeals held that the rejection of vouchers for over ten thousand dollars which contained misrepresentations as to less than two thousand dollars was not the imposition of a:penalty but only-the statutory rule of accounting applicable to the case, and that the agent had had an opportunity to file corrected vouchers but had not availed of it. The court below also held that the defenses that the bond had been extorted under color , of law and that the criminal judgment against the agent' for fraudulent vouchers
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was a bar to the recovery from the surety under the bond were untenable.
Mr. J. Kemp Bartlett and Mr. Milton S. Gunn for plaintiff in' error. - •
Mr. Assistant Attorney General Russell, with whom The Attorney General was on the brief, for defendant in error.
Judgment affirmed by an equally divided court, and cause remanded to the Circuit Court of. the United States for the District of Montana. ■'
Mr. Justice Moody did not sit.