Page:Federal Reporter, 1st Series, Volume 8.djvu/88

 74 FEDEEAL EEPOBTEB. �under the wrong section. When, he made his certificate it was not known that the execution of the bonds would be denied; neither was the secretary authorized to make a certificate under any other section than the one he did. Besides, the mistake or "accident" of the secre- tary, if any, is the mistake or accident of the plaintifif, whose officer and agent he is. The copies of the bonds certified by the secretary were furnished to the district attorney, together with a transcript of the treasury books, accounts of the agent, and affidavits relating to them, to enable him to bring the proper action thereon; and when an issue of fact, if any, was made therein, it then became his duty to procure the proper evidence for the trial thereof. So, when the defendant denied the execution of the bonds, the burden of proof being oast upon the plaintiff, it was the duty of the district attorney to procure the proper evidence of such execution — a copy of the bonds, certified by the register of the treasury under section 886 — before going to trial. �No excuse is given or offered for this negligence. The probability is that it ocGurred trom inadvertence in not observing or bearing in mind the provision in the statute or the deniai in the answer, or both. But in either case the omission is the negligence of the plaintiff, for which a new trial ought not to be granted ; at least, not unle^s what is sometimes called "the justice of the case" strongly demands it, and then only upon terms compensatory to the adverse party. But upon a careful examination of the treasury transcripts, and the circum- stances of the case as shown in the pleadings, I do not think the ends of justice demand a new trial in this case, but the contrary. In this view of the matter the execution of the bonds by Humason may be admitted. The deniai by the defendant is only a constructive one ai best — a deniai of "knowledge or information sufficient to form a be- lief " upon the question — and it may be taken for granted that upon a new trial the plaintiff would be able to establish that fact beyond a doubt. �But the default of the principal, if any, and his death, occurred nearly 14 years before this action was brought against his sureties, and 16 years before it was brought to trial. Owing to the great lapse of time and the death of the principal it is difuicult if not impossible to ascertain and make legal proof of facts affecting their liability, that very probably exist, and might have been shown with sufficient cer- tainty, if this action had been brought within a reasonable time. And although the maxim, nullum tempus occurrit regi, applies to the United States as well as the crown, and therefore its right to bring ��� �