U.S. Supreme Court
Duncan v. United States, 32 U.S. 7 Pet. 435 435 (1833)
Duncan v. United States
32 U.S. (7 Pet.) 435
Action on a bond executed by William Carson as paymaster and signed by A L. Duncan and John Carson as his sureties, conditioned that William Carson, paymaster for the United States, should perform the duties of that office within the District of Orleans. The breach alleged was that W. C. had received large sums of money in his official capacity in his lifetime which he had refused to pay into the Treasury of the United States.
The bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan as sureties for William Carson, but was not executed by Thomas Duncan. There were no witnesses to the bond, but it was acknowledged by all the parties to it before a notary public. The defendants, the heirs and representatives of A. L. Duncan, in answer to a petition to compel the payment of the bond, say that it was stipulated and understood when the bond was executed that one Thomas Duncan should sign it, which was never done, and the bond was never completed, and therefore A. L. Duncan was never bound by it. They also say that as the representatives of A. L. Duncan, they are not liable for the alleged defalcation of William Carson, because he acted as paymaster out of the limits of the District of Louisiana, and the deficiencies if any, occurred without the limits of the said district.
Before the jury was sworn, the defendants offered a statement to the court for the purpose of obtaining a special verdict on the facts according to the provisions of the act of the Legislature of Louisiana of 1818. The court would not suffer the same to be given to the jury for a special finding, because it "was contrary to the practice of the court to compel a jury to find a special verdict."
The judge charged the jury that the bond sued upon was not to be governed by the laws of Louisiana in force when the bond was signed at New Orleans, but that this and all similar bonds must be considered as having been executed at the seat of the government of the United States, and to he governed by the principles of the common law; that although the copy of the bond sued on, which was certified from the Treasury Department, exhibited a scrawl instead of a seal, yet they had a right to presume that the original bond had been executed according to law; and that in the absence of all proof as to the limits of the District of New Orleans, the jury was bound to presume that the defalcation occurred within the district, and if the paymaster acted beyond the limits of the district, it was incumbent on the defendants to prove the fact. Held that there was no error in these decisions of the District Court of Louisiana.
This is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed, and also the chanroblesvirtualawlibrary
manner in which its obligations should be enforced. It was delivered to the Treasury Department at Washington, and to the Treasury did the paymaster and his sureties become bound to pay any moneys in his hands. These powers exercised by the federal government cannot be questioned. It has the power of prescribing under its own laws what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases the local law cannot affect the contract, as it is made with the government, and in contemplation of law, at the place where its principal powers are exercised.
It is not essential that any court, in establishing or changing its practice, should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding for a series of years, and this forms the law of the court. In this case it appears that the Louisiana law, which regulated the practice of the District Court of Louisiana, has not only been repealed, but the record shows that in the year 1830, when the decision was given in this case, there was no such practice of the court as was adopted by the Act of Congress of 26 May, 1824. The court refused the statement of facts to go to the jury for a special finding because it said "such was contrary to the practice of the court."
By the court.
"On a question of practice, it would seem that the decision of the"
district court as to what the practice is should be conclusive. The practice of the court cannot be better known and established than by its own solemn adjudications on the subject.
On 22 November, 1829, the district attorney of the United States filed, on behalf of the United States, a petition stating that on 4 March, 1807, William Carson, Abner L. Duncan and John Carson made and executed their bond to the United States in the sum of $10,000, by which they bound themselves, and each of them, and either of their heirs, executors and administrators, that William Carson, paymaster of the United States, should well and truly perform and discharge according to law the duties of the office of paymaster of the United States within the District of New Orleans. The petition alleged a breach of this bond by William Carson, paymaster, in having received, in his lifetime, large sums of money in that capacity, which he refused to pay into the Treasury of the United States. And also that Abner L. Duncan had died, leaving property, and that by reason of the facts above stated, his heirs, to-wit, John N. Duncan, chanroblesvirtualawlibrary
Frances Duncan, wife of Frederic Conrad, Hannah Duncan, Elizah Duncan, and Abner Duncan, all children of the said Abner L. Duncan, these last three named being minors, and also Frances S. Duncan, wife of the said Abner L. Duncan, who had accepted the community of her deceased husband, had become liable to pay, and were indebted to the United States, jointly and severally, in the sum of $10,000. The petition proceeded to pray that John N. Duncan and Frances S. Duncan, and the aforesaid minors Hannah, Eliza and Abner Duncan, their tutors and curators, be cited to answer the petition, and that, after due proceedings had, they might have judgment against them, jointly and severally, for the sum of $10,000, with interest and costs. To this petition was annexed a copy of the bond, as follows:
"Know all men by these presents that we, William Carson, paymaster for the United States of America within the District of New Orleans, Abner L. Duncan, John Carson, and Thomas Duncan, Esquires, are held and firmly bound unto the said United States in the penal sum of ten thousand dollars, money of the United States, to be paid to the said United States of America, for which payment well and truly to be made, we bind ourselves, and each of us, by himself, our and either of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this fourth day of March, 1807. The condition of this obligation is such that if the above-bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform and discharge the duties of said office of paymaster for the United States of America, within the District of Orleans, then the above obligation to be null and void, otherwise to remain in full force and virtue."
"A. L. DUNCAN"
The bond was acknowledged by William Carson and Abner L. Duncan, before a notary public in New Orleans, on 4 March, 1807, and by Jolign="justify">The bond was acknowledged by William Carson and Abner L. Duncan, before a notary public in New Orleans, on 4 March, 1807, and by Jolign="justify">The bond was acknowledged by William Carson and Abner L. Duncan, before a notary public in New Orleans, on 4 March, 1807, and by John Carson, before a notary public chanroblesvirtualawlibrary
at Harrisburg, Pennsylvania, on 21 May, 1807. The copy of the bond was certified according to the provisions of the Act of Congress of 3 March, 1817, entitled "an act providing for the prompt settlement of accounts."
To the petition of the United States the heirs and representatives of Abner L. Duncan filed an answer on 14 December, 1829, in which all the allegations in the petition were denied except that Abner L. Duncan did sign the bond therein referred to, but they averred that said Duncan was not, in his lifetime, nor were the respondents, bound in law to pay the amount thereof or any part thereof. They further averred that by and in said bond it was stipulated and understood (when the same was signed by the said Abner L. Duncan, as surety for said Carson) that one Thomas Duncan should also sign the same as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was the said Abner L. Duncan ever bound thereby.
Afterwards, on 26 May, 1830, an amended answer was filed stating that the respondents were not liable for the alleged defalcation in the accounts of the said Carson because said Carson acted as paymaster out of the limits of the District of Louisiana, and the said deficiencies, if any existed, occurred without the limits of said district.
The cause came on for trial upon these pleadings on 29 May, 1830, and before the jury were sworn, the counsel for the defendants offered to the court a statement of the facts for the purpose of obtaining a special verdict on the facts under the tenth section of the act of the Legislature of the State of Louisiana of 1817, page 32. This being opposed by the district attorney, the court refused to admit the same or to suffer the same to be given to the jury for a special finding, "because such was contrary to the practice of this court and because a jury ought not to be compelled to find a special verdict." Whereupon the counsel for the defendants excepted to the opinion and decision of the court therein, before the jury were sworn.
On the trial of the cause, a transcript from the Treasury Department of the accounts of William Carson, as paymaster, chanroblesvirtualawlibrary
was given in evidence showing a balance due to the United States of $6,126.11, for which sum a verdict was given and a judgment thereon rendered in favor of the United States. On the trial, the defendants took the following bill of exceptions:
"Be it remembered that on the trial of this cause, the judge charged the jury that the bond sued on was not to be governed by the laws of Louisiana, or those in force in the Territory of Orleans, at the time said bond was signed by Abner L. Duncan, who signed it in New Orleans, in the then said territory; but that this and all similar bonds must be considered as having been executed at the seat of government of the United States, and to be governed by the principles of a common law, to-wit, the common law of England. The judge further charged the jury that although the copy of the bond sued on exhibited a scroll instead of a seal, yet they had a right to presume that the original bond had been executed according to law, to-wit, that it was sealed in the manner prescribed by the common law, that the scroll in the copy represented the place of the seal, as plainly as could be done without a facsimile, and that if the fact was otherwise, it was in the power of the defendants to have shown it. The judge also charged the jury that it was bound to presume, in the absence of all proof as to the limits of the District of Orleans, that the deficiency in the accounts of Carson (hereunto annexed), the principal obligor on said bond, occurred on account of moneys received and disbursed as paymaster of the District of Orleans, although it was proved that side Carson had acted as paymaster, and disbursed moneys, as such, at Fort Stoddart, and at the Town of Washington, both in the then Territory of Mississippi; and finally that if said Carson disbursed money in any other district than that Orleans, it was incumbent on the defendants to prove that fact. The judge further charged that the possession of the bond by the Treasury Department, was prima facie evidence of delivery. To all of which charges the counsel for the defendants then and there excepted before the jury retired to consider their verdict. "
The defendants prosecuted a writ of error to this Court, and the record presented the bill of exceptions to the ruling of the district court, as to the claim to have a special verdict, and the matters which the defendants' counsel offered for the jury to find as such, and also the bill of exceptions sealed by the court on the trial of the cause.
The case came on for argument, at the January term of this Court in 1832, and was held under advisement. It was in part reargued at this term. chanroblesvirtualawlibrary