Bevans v. United States

ERROR to the Circuit Court for the Eastern District of Arkansas; the case being this:

Prior to February, 1860, Bevans had been appointed a receiver of public money for the district of lands, subject to sale at Balesville, Arkansas, and gave bond conditioned that he 'should have truly and faithfully executed and discharged, and should continue truly and faithfully to execute and discharge all the duties of the said office.'

These duties are defined by acts of Congress and by Treasury Regulations enacted in pursuance of them.

The 6th section of the act of May 10th, 1800, made it the duty of all such receivers to transmit to the Secretary of the Treasury accounts of all public moneys by them received, within thirty days in case of public sale, and quarterly in case of private sales, and to transmit the money received by them within three months after its receipt. The act of August 6th, 1846, however, and subsequent acts made it the duty of such receivers 'to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by the act, all the public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper department or officer of the government, to be transferred, or paid out, and when such orders for transfer, or payment, are received, faithfully and promptly to make the same as directed.' Following these acts were the Treasury Regulations of July 18th, 1854 (in force when this receiver was in office), which required all receivers to deposit in the treasury all public money in their hands, as follows:

1. When their weekly receipts exceed $10,000, they were required to deposit at the termination of each week.

2. When the weekly receipts were less than $10,000, but exceeded $5000, they were required to deposit at the close of each period of two weeks.

3. When the monthly receipts were more than $2000, and less than $20,000, they were required to deposit at the end of each month.

4. When the monthly receipts were less than $2000, they were required to deposit at the end of each quarter.

In this state of things the United States, on the 27th September, 1867, brought suit against Bevans, and his sureties on his official bond, as above mentioned, conditioned for the faithful performance of all the duties of the office of receiver according to law. The breaches assigned were that the principal obligor had failed to account for the money he had received, in his official capacity, on behalf of the United States, from the time of his appointment, January 17th, 1860, to the 30th of April, 1861, and that he had failed to pay over such money, although required by law to account for the same and to pay it over. At the trial the plaintiffs gave in evidence duly certified transcripts of official settlements of the receiver's accounts, from which it appeared that he had in hand of public money, received by him between the 17th of January, 1860, and the 31st of March, 1861, the sum of $19,737.26; that on the 31st day of March, 1860, he held an unpaid balance of $4116.05; that on the 30th of June, 1860, the balance against him was $6535.26; on the 30th of September, 1860, $8346.34; on the 31st of December, 1860, $19,662.66; and on the 30th of April, 1861, $19,737.26, the unpaid balances at the end of each quarter being carried forward into the account of the next succeeding quarter. No attempt was made to impeach the correctness of these official settlements; but the defendants offered to prove that on the 6th day of May, 1861, Bevans, the receiver, was residing at Independence, in the State of Arkansas; that on that day the people of the State, legally assembled in convention, passed 'a secession ordinance,' whereby the State of Arkansas was withdrawn from the Union; that such ordinance became of force and effect, and was binding on all the citizens of the State; that the convention then passed an ordinance prohibiting all officers of the United States from paying out any money of the United States in their hands, and requiring them to hold such money subject to the further order of the convention, and that immediately after the passage of this second ordinance he was notified thereof before he had time to account to the United States, or to remit the money in his hands as receiver. In connection with this the defendants further offered to prove that subsequently the State of Arkansas was attached to what was called the 'Southern Confederacy,' and that in order to insure performance of her duties as a member of said confederacy, the convention aforesaid, and the legislature of the State made provision for seizing, and did actually seize the money in the hands of the said Bevans, as receiver; that under the said acts and ordinances he paid to the agents of the State all the money he had in his possession belonging to the United States, as he was forced and compelled to do, the State being organized as a member of the confederacy, she and the confederacy having armed troops in her territory to compel him to pay, the acts and ordinances being compulsory, and the agents and officers of the State threatening that if he declined to pay they would punish him by imprisonment, or otherwise, and that in consequence of such menaces he did, on the 1st day of January, 1862, pay over to such agents and officers all the money he had in his hands as a receiver, which was placed in the treasury of the State in aid of the war against the United States, at a time when he could not remit the same to the Treasury Department at Washington. These facts had been pleaded in bar.

The evidence thus offered by the defendants the Circuit Court refused to receive, being of opinion that if all the facts which it tended to prove were proved, they would not amount to a defence, and the court accordingly directed the jury to find for the plaintiffs the amount claimed, in and by the papers read in evidence by the plaintiffs, viz.: $19,737, with interest from October 4th, 1861.

Verdict and judgment having gone accordingly for the United States, Bevans and the sureties brought the case here; the decision of the court upon the evidence offered, and which it refused to receive, being the principal error assigned; the absolute form of the direction to the jury as to their finding being also a matter excepted to.

The case was twice argued.

Mr. A. H. Garland, for the plaintiff in error, on the first point went into an able and learned argument, citing various adjudged cases, to show that where the condition of a bond became impossible to be performed by great overpowering force and fear, then the obligation was saved.

On the second point he submitted that the direction of the court to the jury, unqualified as it was, took out of their hands all that there was for them to do, and was thus erroneous; that the instruction should have been, 'if the jury believe,' &c.

Mr. B. H. Bristow, Solicitor-General, and Mr. W. A. Field and Mr. C. H. Hill, Assistant Attorneys-General, contra.

Mr. Justice STRONG delivered the opinion of the court.