Samuel Nelson

“ Nor do the transcripts alter the case in this respect. They only stand in place of the voluminous accounts. They do not change the form of action. The instruction of the judge, which required that the defendant should show an error in the quarterly accounts by the clearest evidence, is not defensible. It is a superlative, and rejects two inferior kinds of evidence, viz., clear evidence and clearer evidence. Now by what rule of law is a jury bound to reject clear testimony? Would the same rule apply to a note of hand in which error should be alleged? ”

“ A conclusive answer to this claim, in the judgment of the court, is, that the duties thus paid constitute no part of the proceeds of the goods forfeited, in which only the collector has an interest. The proceeds are the appraised value secured by the bond, or, in case no bond be given, the amount derived from the sale by the marshal, after the deduction of all proper charges. The payment of the duties is a condition to the acceptance of the bond, and re-delivery of the goods, and is the voluntary act of the claimant. ”

“ The collector repays the excess to the merchant out of his own money, and the government afterwards returns it to him by a warrant from the Treasury, and charges him with that warrant. If the government had retained the whole sum deposited, and at the same time had required the collector to pay back to the merchant the excess, there would be some ground to sustain the allegation of the defendant; but as it is, there is no ground for the allegation of the defendant of a double charge, or error in this sum, and the jury are wholly to disregard this claim, and make no allowance for it whatever. ”

“ If the jury believe that the forfeited goods, as to which one half of the amount of duties is in controversy, were restored to the claimants upon a stipulation or bond for their value, estimated as at the place of export, and that this mode of estimating was adopted by the court, on the ground that the amount of duties constituted a part of their entire value, and distribution after condemnation ought, in law and in equity, to be made accordingly, and the defendant should receive credit for the amounts in controversy under this head. ”

“ This mode of keeping and disbursing the public revenue has existed since the foundation of the government. Even when the banks have been used as depositories, either by act of Congress, or by the regulations of the head of the Treasury, it was not, at all times and places, practicable for the different collectors and receivers to make the deposit, and in such cases the moneys were kept until drawn for by the proper authority. ”

“ Buford, 3 Pet., 29.) That when moneys come into the hands of an individual, not through the officers of the Treasury, or in the regular course of official duty, the books of the Treasury do not exhibit the facts, nor can they be known to the department. (Id.)
It was held in the United States v. Buford, that a Treasury transcript was not competent proof against the defendant in respect to moneys coming into his hands from a third person not in the regular course of official business; and that the evidence on which the statement of the account was founded should have been produced. ”

“ The act of 1822, already referred to, as we have seen, limited the fees and emoluments of the office to an amount not exceeding the sum of $4000. The act of 1838, and which was continued through the term of office of the defendant, contained a like restriction, and the eighteenth section of the act of 1822 further provided, that no collector should ever receive more than four hundred dollars, exclusive of his compensation as collector, and the fines and forfeitures allowed by law, for any services he may perform for the United States in any other office or capacity. ”

“ An excess for duties is paid into the Treasury. The merchant calls for the excess, and the collector pays it out of funds in his hands; and the amount is refunded to him by warrant. The warrant is charged to him, but he is not credited for the amount which he has paid. Was it not a matter of fact for the jury to determine whether the errors of which the defendant complained did not exist? ”

“ By the instructions of the Treasury Department, and course of business under them, as to the retention and disbursement of the surplus amounts of public money remaining with the defendant as the banker or fiscal agent of the government, the duties performed and responsibilities assumed by him are extra-official, for which the jury may allow him such reasonable compensation and indemnity as they may find him entitled to therefor. ”

“ The practice of the department is easily understood. The collectors, prior to 1829, retained in their hands duties paid under protest, or for unascertained duties, under the idea that they were personally responsible. After 1829 this practice was changed. Since then, the collector credits the United States with the amount of unascertained duties, and pays to the importer (out of moneys in his hands) the excess when ascertained. For this amount he receives a warrant from the Treasury, with which he is charged. ”

“ I. The collector is the officer who receives all the duties, is consequently chargeable with the whole amount, and can discharge himself from that liability only by showing duty bonds unpaid, and cash paid to, or legally for, the government.
II. The certified accounts from the Treasury Department being made up from the collector's quarterly returns, and agreeing with the quarterly accounts, except in the items specifically disallowed by the comptroller, are prima facie evidence that the amount stated as the balance is due from the collector to the government. ”

“ Among the items rejected is a charge of $36,712.71, for fees payable by persons engaged in trade and navigation for certain services, performed by the collector at each port, such as giving permits to land goods, clearances, bills of health, &c., and which were chargeable under the compensation act of 2d March, 1799 (1 Stat. at L., 705, § 2) . These fees were divided between the collector, naval officer, and surveyor, in districts in which these several officers are appointed. The collector in the district of New York was also entitled to a commission of one quarter of one per cent. ”

“ They might have been paid. If such loose evidence is admissible, the Treasury of the United States would be at the mercy of public officers. There would be no security. So, too, the letter of Hoyt, dated 30th June, 1841, was properly ruled out. That letter was written after he had retired from his office and had become a private citizen, and could no more be made an available protest against his official admissions in his quarterly accounts, than a letter written at or after the execution of a bond could be adduced to show the invalidity of the bond. ”

“ The excess of deposits for unascertained duties was paid to the merchant by the cashier for the collector, and was not charged on the cash-book. And by the circular from the comptroller's office he was directed to enter upon the debit side of his accounts the whole deposit made by the importer, which would be balanced by the ascertained duty, and the excess paid back to the importer. ”

“ Hoyt, having received his portion of the proceeds of the bond, now claims also a portion of the duties. The goods are the things to which the collector is primarily to look for his compensation. But the law has provided that, until the suit is decided, the importer may give his bond, and take the goods into possession, paying the duties as though the goods had been legally entered. ”

“ To the proof of errors in detail, the defendant is at liberty to superadd evidence of errors in gross, so far as such proof may tend to show that the defendant is charged with a greater amount of cash than he was properly accountable for. ”

“ The instructions should have left it to the jury to find how much money of the United States had been received by the defendant; and whether the same had been accounted for. Sthreshley v. United States, 4 Cranch, 169.
It was never contemplated by any law that the collector should personally perform all the duties of his office. The law provides for other officers, and provides for their compensation, and defines their duties. ”

“ It is not necessary for the defendant to prove that credit was claimed at the Treasury Department for errors now shown in the accounts, where the defence operates by way of traverse denial, or impeachment of the case in chief of the plaintiffs. ”

“ Next as to commissions. [Mr. Walker referred to several acts of Congress to show that the spirit of the whole legislation on this subject was to separate the duties of collecting from those of disbursing the public moneys.] The responsibility of the collector was increased by a change in the mode of drawing money by the Treasurer's draft and by a transfer draft. It was increased by his being obliged to pay drafts of which he had no previous notice. These services did not appertain to the office of collector, and were of that description for which compensation has been repeatedly allowed. ”

“ This action can only be sustained for so much as the plaintiff in error had actually received; and if he had failed to collect, the action should have been upon his bond. It is questionable whether an action of assumpsit can be maintained at all against a public officer who has given bonds for his official conduct. Trafton et al. v. United States, 3 Story, 646; Perkins v. Hart, 11 Wheat., 237; 8 Barn. & C., 324; 5 Mees. & W., 83; Toussaint v. Martinnant, 2 T. R., 105.
But how do the United States prove their action? Why, by Treasury transcripts made up in the Treasury Department. ”

“ Such persons are, therefore, officers of the government, and the collector is not responsible for the fidelity of these subordinates, beyond what may grow out of his own neglect in not properly superintending the discharge of their duties. ”

“ He is at liberty to show errors, omissions, or overcharges in the accounts rendered, or that entries have been suppressed or untruly made, or that he is charged with money which has been wrongfully withheld by subordinates in the customhouse, or by other persons. ”

“ It must be 'a transcript from the books and proceedings of the Treasury,' which doubtless will usually present such a statement. The amount of the detail, or degree to which the particulars of the account should be carried, must necessarily be left open to the exercise of some discretion, as there can be no fixed rule by which to determine it.
The necessity of greater particularity than exhibited here in the several transcripts, to guard the officers against surprise, and afford an opportunity for explanation, is not very apparent ”

“ These transcripts are intended to be statements made up by the accounting officers of the Treasury Department from the quarterly accounts rendered by the officer with whom the account is kept, after an examination and adjustment of such quarterly accounts, and the allowance or disallowance of the several items contained therein. ”

“ Fees paid B. F. Butler, being rejected items Nos. 10, 11, and 12.
3. Measurers' and gaugers' expenses, being rejected item No. 9.
(The several items rejected by the comptroller, and numbered, in the foregoing statement on the part of the plaintiffs, Nos. 7, 8, 9, 10, 11, and 12, being allowed to the defendant by the jury, under the charge of the court, do not form any part of the exceptions, and this part of the prayer of the plaintiff's counsel is therefore omitted.) ”