Samuel Nelson

“ The fraud, thus developed, was accomplished at the time by means of false certificates of the receipt of the purchase money by the receiver, which were given by him in the usual way, as the entries for the several tracts of land were made at the register's office, and also by entering and keeping the accounts with the government the same as if the money had been actually paid as fast as the lots were entered. The monthly or quarterly returns to the proper department would thus appear unexceptionable, and the fraud concealed until payment of the balances should be called for by the Government. ”

“ Lands remaining unsold at the close of a public sale may be sold at private sale by entry at the land-office at one dollar and twenty-five cents per acre, to be paid at the time of making such entry. No lands which have reverted or which shall revert to the United States for failure in any manner to make payment, shall be subject to entry at private sale until they shall have been first offered to the highest bidder at public sale ”

“ The jury were charged, if they believed, from the evidence, 'that a fraudulent design existed between Boyd and Garesche to conceal the fact of Boyd's defalcation from the sureties, until they should execute the bond, and that such design was communicated to the Secretary of the Treasury, and his answer received before the actual execution of the bond, that in such case the bond would be fraudulent and void, and the sureties not liable.'
Fraud to have this effect is either matter of law or matter of fact. ”

“ If, however, the court shall perceive their connection and importance, the judges will not fail to make the proper application and determine the weight to be given them in the evidence; we acknowledge our inability to do so.
The remaining balance of the plaintiffs' testimony is certain certified money accounts of the United States with Gordon D. Boyd, receiver of public moneys. These purport to be the quarterly statements to Boyd, of moneys remaining on hand from quarter to quarter, and stand obnoxious to the objections we have before considered. ”

“ If the defendants had intended to have a review of that judgment on a writ of error, they should have refused to amend the pleadings, and have permitted the judgment on the demurrer to stand.
Another ground upon which the judgment must be reversed is, that a judgment for costs was rendered against the plaintiffs. The United States are not liable for costs. ”

“ But to allow a certified statement of a mere money balance in gross, or certified statements of money quarter-balances, to inculpate the defendants would, of necessity, work judicial oppression and injustice; we therefore repeat that the plaintiffs have not made out such a case as would enable them to recover, and that the verdict of the jury for the defendants cannot in this court be disturbed. ”

“ There is no legal disability in the receiver to enter public lands.
In United States v. Boyd, 15 Pet., 187, the court held, that 'it matters not at what time the moneys had been received, if after the appointment they were held by the officer in trust for the United States, and so continued to be held at and after the date of the bond,' the securities are bound. ”

“ The matters of the third point we think we have sufficiently considered of in what has been said on the first and second.
The fourth point, that V. M. Garesche was the agent of the general land-office to settle with Boyd, as receiver that he made such settlement prior to the date of the bond, ascertained that the defalcation had thus accrued, and fraudulently enjoined secrecy on the officers and clerks in fraud of the defendants, we think we have sufficiently shown. ”

“ But if Garesche's acts were to be permitted to influence the jury, on the proof of agency submitted in establishing a fraudulent combination, then the bond previously executed by Boyd, and the defendants as his sureties, was admissible to rebut the inference that they were fraudulently induced to execute the bond on which this suit was instituted. Fraud is an extrinsic circumstance, which, if it exists, will vitiate the act infected ”

“ There was no legal proof of Garesche's agency, or of the extent of his powers to bind the United States. If any such agency existed, the instructions were of record in the treasury department, could be made evidence in the mode prescribed by law, and secondary evidence was inadmissible. To this general rule of evidence there are some exceptions; but this is not one, or within the principle of them. Jacob v. United States, 1 Brock., 528, a case of exception. Agency is a contract, and what constitutes it is matter of law. 1 Livermore on Agency, 25. ”

“ No title is valid if acquired against law ..... A patent issued against law is void. 2 How., 318; 13 Pet., 511.
Lands not subject to sale by law do not pass, without a register's certificate and payment; and the title of the United States is not diverted or affected thereby. ”

“ The testimony of all the witnesses, William Dowsing, John Davies, John D. Montgomery, William B. Winston, and Robert E. Harris, conduce to show that Boyd made his deposits of public moneys, as they accrued, in the office of the Planters' Bank, at Columbus, where he ought to have made them. ”

“ It is necessary, therefore, to have a restatement of the account for this purpose. The restatement does not falsify the general account, but arranges the items of debts and credits, so as to exhibit the transactions of the collector during the four years in question. ”

“ The counsel for the defendants ask the court to revise the judgment of the court below, rendered upon the demurrer to the rejoinders of the defendants to the plaintiffs' amended replication, overruling the demurrer, insisting that the rejoinder was good, and that judgment should have been rendered for the defendants. ”