Cox and Dick v. United States

Mr Justice Thompson delivered the opinion of the Court. This cause comes up by writ of error from the district court of Louisiana district. The suit was instituted according to the practice of that court.by petition, which states that Joseph H. Hawkins, late of New Orleans, navy agent of the. United States, now deceased, John Dick, late of the same place, deceased, and Nathaniel Cox, of the same place,- on the 10th day of March 1821, by their bond, became jointly and severally bound to the United States in the penalty of twenty thousand dollars. . To which obligation a condition was annexed, by which it was provided, that if the said Joseph H. Hawkins shall regularly account, when. thereunto required, for all public moneys received by him from time to time, and for all public property committed to his. care, with such person or persons,, officer or officers of the government of the United States, as shall be duly authorised to settle and adjust his accounts, and shall pay over, as he may be directed, any sum or sums that may be found due to the United States upon any such settlement, and shall faithfully discharge in every respect *199 the trust reposed in him, then the obligation to be void, other* wise to remain in full force and virtue: and the petition further states, that the said Hawkins did hot account for all public moneys received by him, and did not pay over the sums due from him to tho United States; but at his death «remained indebted to the United States in the sum of fifteen thousand five hundred and fifty-three dollars and eighteen cents, for moneys received by him from the United States since the date of the said bond, as navy agent: by reason-whereof, the condition of the said bond had become broken, and the said debt become due; and prayed process of summons against the legal representatives of Hawkins and Dick, deceased, and against Nathaniel Cox, and that judgment may be rendered against them for the said debt with interest and cost. A copy of the bond, duly authenticated, is annexed to the petition; and citations were issued against the legal representatives-of J. H. Hawkins, deceased, and of John Dick, deceased (without naming or designating them in any other manner), and against Nathaniel Cox. As to the representatives of Hawkins, the. citation was returned not found; and as to the representatives of John Dick, it was returned served, and the like return as to Cox, Cox appeared and answered, denying that. the sum of fifteen thousand-five hundred and fifty-three dollars and eighteen cents is due from the sureties, as stated in the petition; alleging that he has paid, since the decease of Hawkins, seven thousand three hundred and seventeen dollars and fifty-four cents, which had been allowed at the treasury of the United States; leaving a balance only of eight thousand two hundred and thirty*five dollars and sixty-four cents. And, according to the course of practice in Louisiana, he represents that the succession of his-co-surety John Dick, is solvent; and demands that the United States divide their action, by reducing their demand to the amount of the share and proportion due by each surety, which was overruled by the court. Nathaniel Dick and James Dick appear and answer, that they are.two -of three heirs of John Dick, and in no event bound for more than two thirds of any debt of John Dick, and deny that the debt is in any manner due by the estate of John Dick: but should the same be proved, they say they have re *200 ceived no more than four thousand dollars of the estate of John Dick, and are liable for no more than two thousand dollars each, and pray judgment and trial by jury. The cause was tried by a jury, and a general verdict for -twenty thousand dollars found for the plaintiffs, being the amount of the penalty in the bond. Upon which the court gave judgment against the estate of John Dick and Nathaniel Cox, jointly and severally, for the sum of twenty thousand dollars, with six per cent interest from the 2d day of January 1830, until paid; and also gave "judgment against Nathaniel Dick and James Dick, for the sum of ten thousand dollars each, with interest, &c. In the course of the trial, a bill of exceptions was taken to the opinion of the court, iti rejecting evidence offered on the part of Cox in support of his answer, setting up the payment of seven thousand three hundred and seventeen dollars and fifty-four cents,'made by him after the death of Hawkins. It is deemed unnecessary to notice the numerous and palpable errors contained in this record: that which arises from the entry of the judgment is insuperable. It is difficult to conceive, unless through mistake, how such a judgment could be entered. The demand in the petition is only-fifteen thousand five hundred and.fifty-three dollars and' eighteen cents. The verdict of the jury is twenty thoúsand dollars; and upon this a judgment is. entered up against the estate of John Dick and Nathaniel Cox jointly and severally for twenty-thousand dollars, and a judgment also against Nathaniel Dick and James Dick, for ten thousand dollars each. Uppn no possible grounds, therefore, can this judgment be sustained. 'There are, however, one or two questions arising upon this record, which have been supposed at the bar to bave a more general bearing, which it may be proper briefly to notice. Upon the trial, the defendant N. Cox offered in evidence a transcript from the books of the treasury, duly authenticated, purporting to be a list of payments made, and receipts taken and passed at the treasury of the-United States, in the name of Joseph H. Hawkins, since the 3d of September 1823; ithaving been previously shown that Hawkins died on the 1st day of October of that year.. This evidence was offered in support of the allegation in Cox’s answer, that he had paid seven thou *201 sand three hundred and seventeen dollars and fifty-four cents since the decease of Hawkins in his capacity of surety. This testimony was objected to by the attorney of the United States on the ground that no credits could be allowed, but such as had been presented at the treasury and refused. The objection was sustained by the court, and the evidence rejected. This was supposed in the court below, to coime within the act of congress, 2d vol. Laws U. S. 595, which declares that in suits between the United States and individuals, no claim for a credit shall be admitted upon the trial (except under certain -specified circumstances, not applicable to this case), but such as shall appear to. have been presented to the accounting officers of the treasury for their examination, and hy them disallowed. This transcript is not set out in the record, and we can only judge of it from what is stated in the bill of exceptions; and from this it does not appear to be a case coming at all within the act of congress. It was not offered as evidence of any new claim for a credit which had not been presented to the accounting officers of the treasury. All the credits claimed had been given at the treasury; and the only purpose for which it was offered, was to show that such credits were given after the death of Hawkins; and although standing in his name, the payments could not have been made, by him; and to let in evidence to show that they were in fact made by the surety. There is no evidence in the cause showing the course of keeping the accounts at the treasury in such cases. But it is believed that new accounts are never opened with the sureties; The accoun ting officers have no means of deciding whether the money is paid-out of the funds of the sureties, or out of those of the principal. That is a question entirely between the sureties and .the representatives of the principal. If application had been made at the treasury, and the accounting officers had transferred the payments, and given credit to Cox instead of Hawkins, it would not have changed the state of the case as between the United States and the parties in the bond; and as between the sureties themselves, it would have decided nothing, even if that was an inquiry that could have been gone into upon this trial. But nothing done at the treasury, which did not fall within the scope of the authority of the accounting officers in settling accounts, could have been received in. evi *202 deuce. In the case of the United States v. Buford, 3 Peters, 29, it was held 'by this court that an account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under.the act of congress. Such statements at the treasury can only be regarded as establishing items for moneys disbursed, through the ordinary channels1 of the department, when the transactions are shown by its books. If then the accounting officers of the treasury could' have done nothing more than had already been done by giving credit on Hawkins’s account for payments allegéd to have been made by Cox after his death, whence the necessity of making any application to the treasury? It would have been a nugatory act; and the law surely ought not to be so construed as to require of a party a mere idle ceremony. The law was intended for real and substantial purposes; that the United States should not be surprised by claims for credits, which they might not be able to meet and explain in the hurry of & trial. But as no-new credit was asked in this case, it would have been useless to make any application to the treasury for the mere purpose of being refused. The evidence offered of Hawkins’s account, as navy agent, with the branch bank at New Orleans was properly rejected. It was not competent evidence in this cause in any point of view, unless it was to show that there was a balance in favour of Hawkins, which ought to go to the credit of his account with the government. But for this purpose it was not admisgible; it not having been presented to the accounting officers of the treasury for allowance. This was settingup a claim for a new credit, and could not be received according to the express provisions of the act of congress. The proceedings.in this cause, and the manner in which the judgment is entered, have been considered at the bar as affording a proper occasion for the court to decide whether this contract, and the liability of the parties thereupon, are to be governed by the rules of the civil law which prevail in Louisiana, or by the common law which prevails here. It was contended on the part of 'the plaintiffs in error, that the United States were bound to divide their action, and take judgment against each surety only, for his proportion of the *203 sum due, according to the law of Louisiana; considering it a contract made there, and to be governed in this respect by the law of the state. On the part of the United States it is claimed that the liability of the .sureties must be governed by the rules of the common law; and the bond being joint and several, each is bound for the whole; and that the contribution between the co-sureties is a matter with which, the United States , have no concern. The general rule on this subject is well settled; that the law of the place where the contract is made, and not where the action is brought, is to govern in expounding and enforcing the/contract, unless the parties have a view td its being executed elsewhere; in which case it is to be governed according to the law of the place where it is to be executed. 2 Burr. 1077; 4 Term, 182; 7 Term, 242; 2 Johns. 241; 4 Johns. 285. There is nothing appearing on the face of this bond indicating the place of its execution,- nor is there any evidence in the case showing that fact. In the absence of all proof on thpct point, it being an official, bond taken in pursuance of an act of congress, it might well be assumed as having been executed at the seat of government. But it is most likely that in point of fact, for the convenience of parties, the bond was executed at Néw Orleans, particularly as the sufficiency of the sureties is approved by the district attorney of Louisiana. But admitting the bond to haye been signed at New Orleans, it is very clear that the obligations imposed upon the parties Kereby looked for its execution to the city of Was ington It is immaterial where the services as navy agent were / be performed by Hawkins. His accountability for non-j rformance was to be at t the seat of government. He was iiound to account, and the sureties undertook that he should account for all public moneys received by him, with sue á officers of. the government of the United States as are dr/y authorised to settle and adjust his accounts. The bond if/given with reference to the laws of the United States on tnat' subject. And such accounting is required to be with the ,treasury department at the seat of government; and the navy 'agent is bound by the very terms of the bond to pay over such sum as may be found due to the United States on such settle- *204 merit; and such paying over must be to the treasury department, or in such manner as shall be directed by the secretary. The bond is, therefore, in every point of view in which it can be considered, a contract to be executed at the city of Washington; and the liability of the parties must be governed by the rules of the common law. The judgment of the court below is reversed; and the cause sent back with directions to issue a venire de novo. This cause came on to be heard on the transcript of the record from the district court of the United States for the district of East Louisiana, and wás argued by counsel. Op consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby reversed, and that this' cause be, and the same is hereby remarided to the said district court, with directions to award a venire facias de novo.