US SUPREME COURT DECISIONS

Although a venire de novo is frequently awarded by a court of error upon a bill of exceptions, to enable parties to amend, and though amendments may, in the sound discretion of the court, upon a new trial, be permitted, the venire de novo is in no instance anything more than an order for a new trial in a cause in which the verdict or judgment is erroneous in matter of law, and is never "equivalent to a new suit." No statute of the United States alters the law in this regard.

It has never been the practice of the circuit courts, in suits under the law of 3 March, 1797, to deny to defendants a claim for credits against the United States because they had not been presented and disallowed before the commencement of the suit. The practice to allow a claim for credits after the suit has been commenced is sustained by the spirit and letter of the third and

fourth sections of the statute. When a defendant seeks to obtain a continuance to prevent judgment from being granted to the United States at the return term of the cause, he is required by the third section to make oath or affirmation that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the Treasury Department and rejected, but the fourth section, which directs that no claim for a credit shall be admitted upon trial but such as shall appear to have been presented to the accounting officers of the Treasury and by them disallowed, the words "previous to the commencement of the suit" are omitted, and further provision is made for a claim for credits at the time of trial, when it shall be proved to the satisfaction of the court that the defendant is to possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credits at the Treasury by absence from the United States or some unavoidable accident. Thus showing it to be an inflexible requirement of the statute that the defendant shall have had his claim for credits disallowed before he can prevent the United States from getting judgment at the return term by a continuance of the cause, and that he may have them submitted to a jury at the trial if they have been refused by the accounting officers of the Treasury after the suit has been instituted, or if he can bring himself within either of the liberal provisions of the fourth section of the Act of 3 March, 1797.

If a navy agent, without a receipt from a purser, upon a requisition for money volunteers to pay demands which it is the purser's duty to pay, or shall pay the orders of a purser and shall permit the receipts for the sums paid by him to get into the purser's possession, by whom they are exhibited at the Treasury and allowed in the final settlement of his account without the purser's having given credit to the navy agent or to the government for the amount, it assumes the character of a private transaction between the purser and the navy agent, or becomes a debt due from the purser, as an individual, to the navy agent as a private person, and the latter cannot claim the amount at the Treasury as an allowance in the settlement of his account, nor as a legal and equitable credit in a suit against him by the United States. chanrobles.com-red

Page 35 U. S. 126

The statute prevents delinquent officers from delaying the United States by frivolous pretenses from obtaining judgment at the return term, gives to the defendant the full benefit of having every credit to which he may suppose himself equitably entitled and which has been disallowed passed upon by a jury, and guards the district attorney from surprise by informing him, through the Treasury Department, before the time of trial, of the credits which

have been claimed and the reasons for the rejection of them. All the provisions of this statute regulating the institution of suits and the recovery by judgment of unpaid balances from delinquent officers are as much a part of their bonds as if they were recited in them, and officers and their securities are, in contemplation of law, apprised of those provisions when their bonds are executed.

This case was before the Court at January term, 1832, on a writ of error to the District Court of Louisiana prosecuted by Nathaniel Cox, Nathaniel and James Dick, plaintiffs in error v. the United States, 31 U. S. 6 Pet. 172. Nathaniel Cox, and John Dick, the father of Nathaniel and James Dick, were the sureties of Joseph H. Hawkins in his official bond to the United States as navy agent of the United States at New Orleans. In the district court, a judgment was given in favor of the United States, and the same was reversed for an informality in entering the same.

On the former writ of error, certain questions were raised as to the admission of evidence offered in the district court on the part of the defendants, and rejected by the court. This Court sustained the decision of the district judge, 31 U. S. 6 Pet. 200.

The judgment of the District Court of Louisiana having been reversed, the cause went back to that court on the following mandate:

"Whereas lately in the District Court of the United States for the Eastern District of Louisiana, before you, in a cause wherein the United States of America were plaintiff, and the heirs and representatives of J. H. Hawkins, the heirs and representatives of John Dick and Nathaniel Cox, were defendants, the judgment of the said district court was in the following words, viz.,"

" The court having maturely considered the motion in arrest of judgment, now orders that judgment be entered up as of the

Page 35 U. S. 127

15th instant against the estate of John Dick and Nathaniel Cox, jointly and severally, for the sum of $20,000, with six percentum interest from 2 January, 1830, until paid, and costs of suit, and that judgment be entered up against Nathaniel Dick and James Dick, for the sum of $10,000 each, with six percentum interest from 2 January, 1830, until paid, and the costs."

"As by the inspection of the transcript of the record of the said district court, which was brought into the Supreme Court of the United States by virtue of a writ of error, agreeably to the act of Congress in such case made and provided, fully and at large appears."

"And whereas in the present term of January in the year of our Lord one thousand eight hundred and thirty-two, the said cause came on to be heard before the said Supreme Court on the said transcript of the record and was argued by counsel, on consideration whereof it is adjudged and ordered 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 remanded to the said district court with direction to award a venire facias de novo."

"You therefore are hereby commanded that such further proceedings be had in said cause as according to right, justice, and the laws of the United States ought to be had, the said writ of error notwithstanding."

Further proceedings took place in the cause in the district court, which are stated at large in the opinion of the Court. A verdict was rendered against the United States, and exceptions being taken to the charge of the court, the United States prosecuted this writ of error. chanrobles.com-red

Page 35 U. S. 129