Moses v. United States

On the 7th day of December, 1880, First Lieut. H. W. Howgate, acting signed officer, U.S. army, sent in his resignation to the adjutant general, at Washington, through the acting chief signal officer. At that time there was in existence paragraph 2394, United States Army Regulations, which provided that 'an officer retiring from service shall before final payment produce certificates from the several accounting officers of non-indebtedness to the United States, and make an affidavit upon the final voucher, stating in addition the correctness of its several items, the place of his residence, and that he is not indebted to the United States on any account whatever.' These certificates were obtained by Lieut. Howgate, and his resignation was accepted by the president, to take effect December 18, 1880. On the 27th of April, 1881, a final payment was made to him of $104, being the balance due him for salary, etc., and his accounts as then appearing on the books of the government stood balanced. Soon after the date of this final payment it became evident, from examinations made in the books of the government, and by investigations from other sources, that Lieut. Howgate had perpetrated gross frauds upon the government by means of fraudulent and forged vouchers, which had been accepted by the government as genuine, and upon which his certificates for settlements had been made. Upon a restatement being had, in which these false and fraudulent vouchers were omitted from the credits which had been thereby given to him, it appeared that he was a defaulter in the sum of over $133,000. On the 24th of August, 1881, an action was commenced by the government against him to recover over $100,000, being the amount of moneys unlawfully drawn and obtained by him on the United States treasury, a list of which was set forth in the 'particulars of demand' accompanying the declaration.

Upon affidavits setting up certain facts showing the false and forged character of the vouchers, an attachment was issued in the action, and certain property of his was attached.

The defendant appeared by attorney, and finally, on the 24th day of May, 1883, upon motion of the district attorney, judgment in favor of the United States against the defendant for want of a plea was granted, and judgment entered in favor of the plaintiff against the defendant for $101,257.08, with interest thereon from August 24, 1881.

By virtue of this judgment the property which had been seized by virtue of the attachment issued in the action was sold, and the sum of $28,000 was realized upon such sale, and the amount thereof credited upon the judgment.

This present action was commenced on the 29th of September, 1884, on a bond alleged to have been executed by the defendants named in the action, being Henry W. Howgate, William B. Moses, and Lebbeus H. Rogers. Of these defendants Mr. Moses was the only one served with process.

The original declaration contained but one count, and alleged that the defendants, 'on the 2d day of April, in the year of our Lord 1878, at the district aforesaid, by their certain writing obligatory of that date, sealed with their seals, and now here in court produced, jointly and severally bound and acknowledged themselves to be indebted to the plaintiff in the sum of twelve thousand dollars, to be paid to plaintiff on demand, yet, though requested, the said defendants have never paid the same to plaintiff, but have wholly neglected and refused, and still do neglect and refuse, so to do.' Judgment for the sum was then demanded.

The bond sued on was introduced in evidence upon the trial, and reads as follows:

'Know all men by these presents, that we, Henry W. Howgate, 1st Lieut. 20th U.S. Infantry, William B. Moses, Washington, D. C., and Lebbeus H. Rogers, New York City, New York, are held and firmly bound unto the United States of America in the sum of ($12,000) twelve thousand dollars, lawful money of the United States, to be paid to the United States, for which payment well and truly to be made, we bind ourselves, and each of us, our and each of our heirs, executors and administrators, for and in the whole, jointly and severally, firmly by these presents.

'Sealed with our seals. Dated the ___ day of March, in the year of our Lord one thousand eight hundred and seventy-eight, and of the independence of said states the one hundred and second.

'The condition of this obligation is such that whereas the above-bounded First Lieut. Henry W. Howgate, 20th Inf't'y, has been assigned to duty as a property and disbursing officer, signal service, U.S. A., _____ has accepted said assignment:

'Now, if the said 1st Lieut. Henry W. Howgate, 20th Infantry, shall and doth at all times henceforth and during his holding and remaining in said office carefully discharge the duties thereof and faithfully expend all public money and honestly account for the same and for all public property which shall or may come into his hands on account of signal service, U.S. army, without fraud or delay, then the above obligation to be void; otherwise to remain in full force and virtue.

'Henry W. Howgate. [Seal.]

'Lebbeus H. Rogers. [Seal.]

'W. B. Moses. [Seal.]

'Signed and delivered in presence of

'James A. Swift,

'Anson Maltby,

'Witnesses as to Lebbeus H. Rogers.

'James A. Swift,

'Witness as to W. B. Moses.'

The bond contained also the justification of Mr. Rogers as surety, and purported to have been sworn to in the city of New York on the 13th day of March, 1878. It also contained the justification of Mr. Moses as surety, and purported to have been sworn to by him on the 14th day of March, 1878, at Washington, D. C. The bond also contained the indorsement of Chief Justice Cartter of the supreme court of the District of Columbia, certifying that satisfactory evidence of the sufficiency of the sureties to the bond had been given, and that he approved the same.

A second count to this declaration was subsequently added, in which the appointment of the defendant Howgate to the signal office at Washington, his assignment to duty there as property and disbursing officer, the execution of the bond bearing date the ___ day of March, 1878, its delivery and the condition contained in such bond, the receipt of a large amount of public moneys, and the failure to expend and honestly account for the sum of one hundred and thirty-three thousand and odd dollars, were all set forth at length and in detail.

The defendant Moses filed several pleas, setting forth substantially the defenses: (1) That the alleged writing was not his bond; (2) that it was extorted from Howgate without any authority of law; (3) that there was no such office created by law as was mentioned in the bond, and no duties pertaining to the office prescribed by law, or by any regulation or order of any department or officer, and that the alleged bond was void for uncertainty; (4) that the accounting officer of the treasury had duly settled the accounts of Howgate, and issued to him a certificate of nonindebtedness to the Untied States, of which the defendant Moses had notice, which discharged him from liability as surety on the bond; (5) that Howgate had kept and performed the condition of the bond.

Prior to the trial, and on the 2d of May, 1892, Moses died, and the suit was continued against his administrators. The trial commenced on the 22d of March, 1893. To maintain its case, the government gave evidence as to the organization of the signal service. It then offered in evidence a duly-certified copy of the order, dated April 18, 1868, from the adjutant general's office, directing Lieut. Howgate to report for duty to the chief signal officer of the army. Also a duly-certified copy of the order from the office of the chief signal officer of the army, dated Washington, July 25, 1876, stating that 'First Lieutenant H. W. Howgate, 20th infantry, brevet captain, U.S. A., acting signal officer's assistant, is hereby assigned to duty 'as property and disbursing officer,' at this office, together with such other duties as may be assigned to him.' Also copy of a letter of Howgate's, date Washington, March 26, 1878, addressed to the secretary of war, in which he said: 'In compliance with what I understand to be the wishes of the department, I have the honor to inclose herewith a bond similar in amount and form to that given by captain of the commissary department.'

It appears from the record that this bond was referred by the war department on the 27th of March, 1878, to the judge advocate general for an opinion as to its sufficiency and form; that on the same day it was returned to the secretary of war by the judge advocate general, with a communication that the bond was in due form, 'except in that it wants the formal seals required to be affixed to the signatures of the obligor and sureties by standing order of the war department of June 11, 1869'; whereupon, on the 29th of March, 1878, the bond was returned to Lieut. Howgate, by order of the secretary of war, 'to have the proper seals affixed.' On the 1st of April, 1878, the bond was returned to the war department, accompanied by a written communication, signed by Lieut. Howgate, in which he said that the bond was 'respecfully returned to the honorable secretary of war with seals affixed as per instructions.' Thereupon, and on the 2d day of April, 1878, the bond was approved. The government then called the subscribing witness to the bond as to Howgate and Moses. The witness proved their signatures, and that they executed the bond at the signal office in Washington, March 14, 1878. The witness thought, though he was not positive, the seals were then on the bond. (In this he must have been mistaken, as the above statement substantially proves the contrary.) The bond was then offered and received in evidence under defendants' objections. The government then proceeded to give evidence to show the breach of the condition of the bond by producing transcripts of books and proceedings of the treasury department, which it claimed were properly certified under section 886 of the Revised Statutes of the United States, and by producing witnesses upon the question of the forgery of the vouchers by Howgate.

Various other questions arose upon the trial in regard to requests to charge, which are sufficiently referred to in the opinion.

The jury found a verdict for $12,000, with interest from September 29, 1884, and the defendants, the administrators, having filed an admission of sufficient assets when administered to satisfy the recovery, judgment was, on the 1st day of April, 1893, entered upon the verdict.

The defendants' motion for a new trial for errors in law and upon exceptions taken was denied, and upon appeal to the court of appeals the judgment was affirmed, and the defendants now seek a review of that judgment by this court.

Wm. F. Mattingly and W. L. Cole, for plaintiffs in error.

Sol. Gen. Conrad, for the United States.

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court.