ATTORNEY AT LAW 490 Louisiana Ave. WASHINGTON, D, C. THE DECISIONS OF THE Supreme Court of the United States, AT OCTOBER TERM, 1873. MRS. BESSIE ELGEE GAUSSEN, wife of EDMOND J. GAUSSEN, Exrx. of the Last Will and Testament of her father, JOHN KINGSBURY ELGEE, Deceased. (See S. C., 19 Wall., 198-214.) Transcript from government books, when evidence -accounts, how stated-accounts of reveuue officers-when admissible against sureties. 1. Under the Act of March 3, 1797, the transcript from the books of the department admissible in evidence against a revenue officer should not be a garbled or mutilated statement; but it is not necessary that every account with an individual, and all of every account, shall be transcribed as a condition of the admissibility of any one account. 2. The statement presented should be complete in itself, perfect for what it purports to represent, and give both sides of the account as the same stands upon the books. 3. It should give the items on each side of the account, but they may be condensed and stated in a briefer form than they stood upon the original en tries. 4. Accounts rendered by a revenue officer are ad missible as entries made against the interest of the party making them. 5. They are admissible against the sureties, because a surety is bound by the acts and declarations of his principal, being within the scope of the business, as a part of the res gestæ. [No. 16.] Argued Oct. 15, 1873. Decided Oct. 27, 1873. IN ERROR to the Circuit Court of the Unit ed States for the District of Louisiana. The case is stated by the court. Mr. C. H. Hill, Asst. Atty Gen., for plaintiff in error: 1. Section 2 of the Act of March 3, 1797, 1 Stat. at L., 512, 513, enacts, "That in every case of delinquency, where suit has been or shall be instituted, a transcript from the books and proceedings of the Treasury, certified by the registry and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the case shall be thereupon authorized to grant judgment and award execution accordingly. There can be no doubt that this applies to sureties as well as principals. Smith v. U. S., 5 Pet., 292; U. S. v. Eckford's Exrs., 1 How., 250. What the statute requires is, full transcripts in the regular course of business by the acof the accounts of disbursing officers, as made Counting officers of the Treasury, and where such transcripts and not mere balances are offered, they are to be received in evidence. Gratiot v. U. S., 15 Pet., 336; U. S. v. Eckford's Exrs. (supra); Hoyt v. U. S., 10 How., 109. In the present case, the adjustment by the auditor of Barrett's account, from his appointment to office under his bond, July 25, 1844, until his retirement, Oct. 12, 1845, is given in detail, with subsequent adjustment made in 1848 and 1854. These reports evidently give all the details which the Treasury Department is accustomed to give in similar accounts, and this is all that the law requires, namely: "A transcript from the books and proceedings of the Treasury." There being but one certificate to them all, is no objection to their admission, or to treating them as separate and distinct accounts. The office of the certificate is, to show that the accounts are properly authenticated, and, if they are connected so as to leave no doubt of their authenticity, this is all that the law requires. 2. The court likewise erred in excluding the accounts rendered by Barrett. They seem to be complete, and in no respect partial or fragmentary, and being rendered by him to the Government in the performance of his official duly, they are admissions on his part of the facts therein stated. 1 Phil. Ev., 4th Am. ed., 307, n., 525, 526; Whitnash v. George, 8 Barn. & C., 556; Middleton v. Melton, 10 Barn. & C., 317. Messrs. J. M. Carlisle and J. D. McPherson, for defendant in error: The reports of the auditor and the accompanying statements of difference were not admissible in evidence separately from the quarterly returns. The Act of March 3, 1797, makes a transcript from the books and proceedings of the Treasury, evidence in suits like the present. But not everything which a treasury officer chooses to write upon the books of the Treas ury, thereby becomes evidence. Those mat- absence from the United States. It results from ters of which the treasury officers have offi- the provisions that the officer is entitled to the cial knowledge, and which upon such knowl- decision by the accounting officers on every edge they have recorded in the books of the item, and this court so rules in the case of U. Treasury, thereby become evidence. But when S. v. Jones, 8 Pet., 375, 382. they ascertain facts by evidence, that evidence becomes part of their proceedings, and their conclusions, apart from the evidence upon which they are founded, are not evidence at all. This is clearly stated in U. S. v. Jones, 8 Pet., 375, 381. The quarterly returns were not admissible in evidence, without the auditor's report. The defendant is entitled to the benefit of all credits allowed by the accounting officers. But as credits claimed, if not admitted by the accounting officers, must be proven, then it follows that to admit the quarterly returns without the auditor's reports, would be to deny the defendant the benefit of all credits given him at the Treasury, and put him to proof of all the credits anew. This would have been a great hardship and one which no court would impose, especially if, as stated in the bill of exceptions, the reports thus omitted contained credits which do not appear in the quarterly returns, but do appear first in the settlements made after the collector's death, and which, with other settlements, the United States declined to offer with the quarterly returns. It may be said that the defendant could have referred to or even put in evidence the quarterly returns and the auditor's reports as an nexed to the petition, and could thus have obtained the advantage of which the course of the plaintiff in the trial is supposed to deprive him. But this is no sufficient answer to the objection. The examples above given are mere illustrations of the evil of an incomplete transcript and although in this particular case the remedy may be easy, that does not justify the plaintiff in mutilating the transcript, or presenting an incomplete one, and throwing on the defendant the onus of completing it. But if the plaintiffs had offered in evidence the complete transcript of which they offered parts, it would not have been admissible. See, U. S. v. Gilmore, 7 Wall., 494 (74 U. S., XIX., 283); U. S. v. Edwards, 1 McLean, 467. There are debits in the transcript, manifestly not within the scope of the liability sought to be enforced. Mr. Justice Hunt delivered the opinion of the court: This is an action brought upon a bond of Thomas Barrett, as Collector of Customs for the Port of New Orleans. The testator, John Kingsbury Elgee, was one of the sureties upon the bond. * * * Upon the trial, the bond of Barrett, the collector, was produced and the signature of the defendant's testator, as one of the sureties therein, was duly proved. Further to maintain the action, plaintiffs' counsel offered in evidence 'copies of the reports of the First Auditor of the Treasury of the United States, numbered respectively 5,688, 5,700, 5,856, 5.870, 6,391, 6,423, 9,241 and 15,817, as admitted and certified by the Comptroller and Commissioner of Customs, all of said papers being fastened together as a whole, and embraced in one certificate. The defendant, "making no objection to the form or substance of the certificate, objected to this evidence, on the ground that the Act of Congress making evidence transcripts from the books of the Treasury Department, applies only to public defaulters, and that the same are not evidence against sureties; and also on the further ground that said returns were fragmentary, incomplete and partial; and also on the ground that said reports charged Barrett with gross sums and balances, without giving details. The evidence was excluded, and plaintiff's counsel excepted to the ruling. The plaintiff also offered in evidence a statement of the account of said Barrett with the It is on its face fragmentary and imperfect, United States, made by said Barrett to the and it moreover contains items not within the United States while Collector of Customs, and scope of the liability of the surety on whose certified as true and correct copies of said origbond the suit is brought. We assume that, un-inal statements. This evidence was objected to der the Act of 1797, which alone makes such a transcript evidence: 1. The transcript must contain all the proceedings. 2. It must contain a decision either of allowance or disallowance of all claims to credit, which have been submitted to the accounting officers. 3. It must not contain debts manifestly and clearly not within the scope of the account settled and adjusted. If the transcript be liable to any of these objections, the proper course is to exclude it. And this course imposes no hardship on the United States. As this suit cannot be barred by limitation, and it is not liable for costs, it has only to submit to a nonsuit and correct the transcript in the particular objected to. The transcript was incomplete. U. S. v. Patterson, Gilp., 44, The Act of 1797 declares that no credit, not allowed by the accounting officers, shall be allowed on the trial, unless it has been presented to the accounting officer "and disallowed," or has not been presented by reason of accident or on the ground that said statement was not legal proof of the existence of a debt by said Barrett, did not tend to prove the same and was not competent evidence thereof; and that_the same was fragmentary and incomplete. This evidence was excluded, and plaintiff excepted to the ruling of the court. * * * By the Act of March 3, 1797, 1 Stat. at L., 512, 513, it is enacted: "Sec. 1. That when any revenue officer shall neglect or refuse to pay into the Treasury the sum or balance reported to be due to the United States upon the adjustment of his accounts, it shall be the duty of the Comptroller to institute suit for the recovery of the same. Sec. 2. That in every case of delinquency, where a suit has been or shall be instituted, a transcript from the books and proceedings of the Treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly." |