Smith v. United States (30 U.S. 292)

The objection, that this signature of the secretary of the treasury was signed by his chief clerk, seems not to be important. It is seal which authenticates the transcript, and not the signature of the secretary. He is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved in deciding this point, whether the secretary of the treasury can delegate to another the power to do an official act, which the law devolves on him personally.

THIS was a writ of error to the district court of the United States for the district of Missouri, exercising the jurisdiction and powers of a ciruit court.

In that court the United States instituted a suit against the plaintiff in error, John Smith, T. who, with Wilson P. Hunt, were, by a bond executed on the 7th of February 1810, in the sum of ten thousand dollars, the sureties of Alpha Kingsley, appointed a district paymaster, in the army of the United States under the act of congress passed on the 16th of March 1802. Alpha Kingsley was dismissed from the service of the United States in 1815. The action was commenced in December 1824.

The pleadings are stated fully in the opinion of the court.

The case was argued by Mr Benton for the plaintiff, and by Mr Berrien, attorney general, for the United States.

For the plaintiff in error Mr Benton contended:

1. That the sureties of the paymaster were exonerated by the neglect of the United States to settle the accounts of their principal. Although Alpha Kingsley was dismissed in 1815, and made frequent applications for the settlement of his accounts; no settlement was made until 1823.

2. The treasury transcript was not evidence in the cause; as it was not certified by the secretary of the treasury, but by Mr Jones, who was the chief clerk in the department.

3. The transcript and certified copy of the bond were not evidence, against the sureties, to show that Alpha Kingsley was a 'paymaster;' and the district judge erred in instructing the jury that it was evidence conducting to prove that fact.

4. The transcript was not evidence of debt against the sureties. They were entitled to notice of the settlement of the accounts, and to a trial by jury to ascertain the amount, and for which they are responsible.

The attorney general, in reply, argued: that the act of congress of 1797 does not require the certificate of the secretary of the treasury to the transcript. It is to be certified by the register, under the seal of the treasury. All the requisites of the law were complied with.

2. The account settled at the treasury, and the copy of the bond were evidence of official acts by the paymaster. Proof of official character may be made by showing individual acts in that character. 2 Starkie on Evidence, 370. 1 Phillips, 170. Cited also, 1 Starkie, 30. 1 Phill. 79.

The act of congress makes a copy of the bond evidence equal to the original. The transcript contains the bond, and thus the bond is a part of the transcript.

3. The decisions of this court in The Postmaster General vs. Early, 12 Wheaton, 136; and Dox vs. The Postmaster General, 1 Peters, 318; and in other cases, are conclusive to show, that the sureties cannot avail themselves of the delay of the accounting officers of the treasury to settle the accounts of those who have received public money, as officers under the government of the United States.

Mr Justice M'LEAN delivered the opinion of the court.