The Court
(nem. con.) decided that the account was not admissible evidence, per se, to charge the defendant in this action. It consisted only of balances per Report, No. 2436, &c., and two items, to wit:
To Charles Grymes, Lt. Marines, for $13.65
To A. A. Nicholson, “ “ “ 90.00
- $103.65
These two items were understood as having been charged first to Grymes and Nicholson, and transferred to the debit of Kuhn.
Mr. Key then offered the various accounts settled at the treasury, from 1821, when Captain Kuhn was appointed paymaster, to 1830, (14 in number.)
No objection being made, they were read to the jury, constituting a continuing account.
Mr. Coxe objected to the following item in the account No. 10, which had been passed to the credit of Kuhn by the officers of the Treasury in 1823:
Amount of stoppages for allowances made by his predecessor, Mr. Desha, $60,667.92.
And to the following item in the account No. 11:
To Desha, pay-rolls recharged, which had been credited in 1823, $9,925.89.
And prayed the Court to instruct the jury, that the said accounts Nos. 10 and 11 are incompetent and insufficient of themselves to establish any of the items of charge therein contained against the defendant of $7,564.13; and $3,455.44 in the first page of the account No. 10 ; and $3,657.94 in the account marked N. S. 1325, and other similar items, which are not charged against the defendant as money paid to'and received by him from the treasury.
Which instruction the Court gave, (nem. con.) upon the authority of the ease of the United States v. Oir’s Administrator, at the (then) present term of the Supreme Court of the United States. To this opinion no exception was taken.
[404]*404Mr. George Gillis, an accounting officer of the Treasury Department, having been examined on the part of the United States to show that the “ general reconcilement ” exhibited the whole of the matters in controversy, and that the defendant acquiesced in all the charges against him except certain disputed items,
Mr. Butler, the Attorney-General, prayed the Court to instruct the jury,
1. That from the evidence aforesaid, the jury may infer and presume that the defendant admitted all the charges to the 8th of October, 1830, except those specially excepted to as stated in the reconcilement annexed to the account No. 11; and that unless the defendant shall satisfy the jury that he did not intend to make such admission, it will be their duty so to infer and presume.
2. That from the evidence aforesaid the jury are at liberty to infer and presume that the defendant claimed no credits other than those allowed to him in the said accounts or stated in the reconciling statement annexed to the said account No. 11; and unless the defendant shall satisfy the jury that he did intend to insist on other claims before exhibited and rejected and not included in the last reconciling statement, it will be their duty so to infer.
This opinion was given with the understanding that the defendant’s account current of the 8th of October, 1830, was in the proper office in the Treasury Department; but it appearing that it could not be found, the Court required the United States to prove the debit side of the account by the original vouchers filed in the department.
Mr. Coxe then contended that as the United States had produced the defendant’s accounts current, in evidence, which contained the charge of the disputed items, they have so far admitted their correctness as to take upon themselves the burden of disproving them; and prayed the Court so to instruct the jury ; and cited Goodenow v. Travis, 3 Johns. 427; Hotchkiss v. LeRoy, 9 Johns. 141; Hopkins v. Smith, 11 Johns. 161; Whitwell v. Wyer, 11 Mass. Rep. 10; Morris v. Hurst, 1 Wash. C. C. R. 433; Bell v. Davidson, 3 Wash. C. C. R. 333; Randall v. Blackburn, 5 Taunt. 245; S. C. 1 Sarg. & L. 92.
The Attorney-General admitted the principle as to matters of fact; but not as to matter of law; nor as to government cases. This Court, and the Supreme Court have so decided in the cases against Orr’s Administrators, so far as regards the defendant. They permitted him to rely on the account of the United States for the credits therein given to him, without obliging him to admit the debits against him in the same account.
But the government does not rely on the defendant’s account [405]*405alone; they have also the testitnony of Mr. Gillis. The government have not admitted this item, (the charge of five per cent, for commissions.)
One argument adduced by Mr. Jones in those eases was that the defendant there had surrendered his vouchers, which differed it from the common case. Here the United States objected to the claim when first presented, and ultimately rejected it.
Mr. Coxe’s prayer, and the objection of the plaintiffs, tvas as follows:
The defendant prayed the Court to instruct the jury that, as the United States had given in evidence the accounts current of the defendant, by the last of which it appeared that there was a balance of $9,107.51 in favor of the defendant, he is entitled to the verdict of the jury upon such evidence, unless the plaintiff shall further prove errors or omissions in said accounts which, shall destroy such balance in his favor, and show, after such rectification, a balance against him in favor of the plaintiffs.
To which the plaintiffs objected, because the accounts settled by the proper accounting officers, and before produced in evidence by the plaintiffs, show, as they contend, that certain of the credits claimed in the defendant’s accounts current, amounting in the whole to a greater sum than the said balance, were suspended by the proper accounting officers, on the coming in of the said accounts current containing them, and were subsequently disallowed ; thereby rebutting any presumption that such credits were ever assented to by any officer authorized to act for the plaintiffs; and showing affirmatively that no such assent was given.
The Court (Thruston, J., doubting,) gave the instruction thus prayed by the defendant.
Mr. Key, for the United States, then took up the first disputed item; being a charge, by the defendant, of $4,480.13 for commission at five per cent, on money disbursed by the defendant for the Quartermaster’s department, and produced the two vouchers whibh had been presented to the accounting officers of the Treasury, namely, a statement of the amount disbursed, and a claim of the commission, and an indorsement thereon in the handwriting of T. Watkins, then Fourth Auditor of the Treasury, signed T. W., and dated March 2, 1829, saying that he had been verbally directed, by the then Secretary of the Navy, to allow the claim, it being for extra official service. The amount of the disbursement was proved by Mr. Gillis, one of the accounting officers. Mr. Kendall, who succeeded Mr. Watkins as Fourth Auditor, testified that he referred the claim to Mr. Branch, the Secretary of the Navy, about the 21st of March, 1829, who rejected it; and that he did not know that any commission of five per cent, had [406]
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The Court
(nem. con.) decided that the account was not admissible evidence, per se, to charge the defendant in this action. It consisted only of balances per Report, No. 2436, &c., and two items, to wit:
To Charles Grymes, Lt. Marines, for $13.65
To A. A. Nicholson, “ “ “ 90.00
- $103.65
These two items were understood as having been charged first to Grymes and Nicholson, and transferred to the debit of Kuhn.
Mr. Key then offered the various accounts settled at the treasury, from 1821, when Captain Kuhn was appointed paymaster, to 1830, (14 in number.)
No objection being made, they were read to the jury, constituting a continuing account.
Mr. Coxe objected to the following item in the account No. 10, which had been passed to the credit of Kuhn by the officers of the Treasury in 1823:
Amount of stoppages for allowances made by his predecessor, Mr. Desha, $60,667.92.
And to the following item in the account No. 11:
To Desha, pay-rolls recharged, which had been credited in 1823, $9,925.89.
And prayed the Court to instruct the jury, that the said accounts Nos. 10 and 11 are incompetent and insufficient of themselves to establish any of the items of charge therein contained against the defendant of $7,564.13; and $3,455.44 in the first page of the account No. 10 ; and $3,657.94 in the account marked N. S. 1325, and other similar items, which are not charged against the defendant as money paid to'and received by him from the treasury.
Which instruction the Court gave, (nem. con.) upon the authority of the ease of the United States v. Oir’s Administrator, at the (then) present term of the Supreme Court of the United States. To this opinion no exception was taken.
[404]*404Mr. George Gillis, an accounting officer of the Treasury Department, having been examined on the part of the United States to show that the “ general reconcilement ” exhibited the whole of the matters in controversy, and that the defendant acquiesced in all the charges against him except certain disputed items,
Mr. Butler, the Attorney-General, prayed the Court to instruct the jury,
1. That from the evidence aforesaid, the jury may infer and presume that the defendant admitted all the charges to the 8th of October, 1830, except those specially excepted to as stated in the reconcilement annexed to the account No. 11; and that unless the defendant shall satisfy the jury that he did not intend to make such admission, it will be their duty so to infer and presume.
2. That from the evidence aforesaid the jury are at liberty to infer and presume that the defendant claimed no credits other than those allowed to him in the said accounts or stated in the reconciling statement annexed to the said account No. 11; and unless the defendant shall satisfy the jury that he did intend to insist on other claims before exhibited and rejected and not included in the last reconciling statement, it will be their duty so to infer.
This opinion was given with the understanding that the defendant’s account current of the 8th of October, 1830, was in the proper office in the Treasury Department; but it appearing that it could not be found, the Court required the United States to prove the debit side of the account by the original vouchers filed in the department.
Mr. Coxe then contended that as the United States had produced the defendant’s accounts current, in evidence, which contained the charge of the disputed items, they have so far admitted their correctness as to take upon themselves the burden of disproving them; and prayed the Court so to instruct the jury ; and cited Goodenow v. Travis, 3 Johns. 427; Hotchkiss v. LeRoy, 9 Johns. 141; Hopkins v. Smith, 11 Johns. 161; Whitwell v. Wyer, 11 Mass. Rep. 10; Morris v. Hurst, 1 Wash. C. C. R. 433; Bell v. Davidson, 3 Wash. C. C. R. 333; Randall v. Blackburn, 5 Taunt. 245; S. C. 1 Sarg. & L. 92.
The Attorney-General admitted the principle as to matters of fact; but not as to matter of law; nor as to government cases. This Court, and the Supreme Court have so decided in the cases against Orr’s Administrators, so far as regards the defendant. They permitted him to rely on the account of the United States for the credits therein given to him, without obliging him to admit the debits against him in the same account.
But the government does not rely on the defendant’s account [405]*405alone; they have also the testitnony of Mr. Gillis. The government have not admitted this item, (the charge of five per cent, for commissions.)
One argument adduced by Mr. Jones in those eases was that the defendant there had surrendered his vouchers, which differed it from the common case. Here the United States objected to the claim when first presented, and ultimately rejected it.
Mr. Coxe’s prayer, and the objection of the plaintiffs, tvas as follows:
The defendant prayed the Court to instruct the jury that, as the United States had given in evidence the accounts current of the defendant, by the last of which it appeared that there was a balance of $9,107.51 in favor of the defendant, he is entitled to the verdict of the jury upon such evidence, unless the plaintiff shall further prove errors or omissions in said accounts which, shall destroy such balance in his favor, and show, after such rectification, a balance against him in favor of the plaintiffs.
To which the plaintiffs objected, because the accounts settled by the proper accounting officers, and before produced in evidence by the plaintiffs, show, as they contend, that certain of the credits claimed in the defendant’s accounts current, amounting in the whole to a greater sum than the said balance, were suspended by the proper accounting officers, on the coming in of the said accounts current containing them, and were subsequently disallowed ; thereby rebutting any presumption that such credits were ever assented to by any officer authorized to act for the plaintiffs; and showing affirmatively that no such assent was given.
The Court (Thruston, J., doubting,) gave the instruction thus prayed by the defendant.
Mr. Key, for the United States, then took up the first disputed item; being a charge, by the defendant, of $4,480.13 for commission at five per cent, on money disbursed by the defendant for the Quartermaster’s department, and produced the two vouchers whibh had been presented to the accounting officers of the Treasury, namely, a statement of the amount disbursed, and a claim of the commission, and an indorsement thereon in the handwriting of T. Watkins, then Fourth Auditor of the Treasury, signed T. W., and dated March 2, 1829, saying that he had been verbally directed, by the then Secretary of the Navy, to allow the claim, it being for extra official service. The amount of the disbursement was proved by Mr. Gillis, one of the accounting officers. Mr. Kendall, who succeeded Mr. Watkins as Fourth Auditor, testified that he referred the claim to Mr. Branch, the Secretary of the Navy, about the 21st of March, 1829, who rejected it; and that he did not know that any commission of five per cent, had [406]*406been allowed in a like ease, and could find no precedent for it in the proceedings of the department.
The United States rested their case here ; and
Mr. Goxe, for the defendant, prayed the Court to instruct the jury, and the Court (nem. con.) after argument, did instruct them, that the evidence so adduced by the plaintiffs is not sufficient to rebut the primd facie evidence that the defendant is entitled to his credit for the item of $4,480.13.
Thruston, J.,
was understood to be of opinion that the indorsement of T. Watkins, then Fourth Auditor, upon the defendant’s vouchers, produced in evidence by the United States, was evidence of the allowance by Mr. Southard, then Secretary of the Navy, and that it was the final action of the proper officer upon the subject, and that it could not be revoked by Mr. Branch, his successor.
Cranch, C. J.,
was of opinion that the indorsement so produced by the United States was evidence that the claim had been allowed by Mr. Southard, then Secretary of the Navy; but he was also of opinion that the allowance was liable to be revoked by his successor before the item had been actually carried to the defendant’s credit in account by the proper accounting officer ; and that it had been so revoked; but that the mere rejection of the claim by the government is not sufficient ,to rebut the primd facie evidence of the defendant’s own account produced in evidence by the United States. Nor was that rejection, together with the other evidence given by the United States, sufficient for that purpose.
The Attorney-General, having, without objection, read Mr. Southard’s deposition, made the following prayer to the Court.
“ The deposition of Samuel L. Southard having been read in evidence, the counsel of the plaintiff’s insisted that the same conduced to prove that the said S. L. Southard, as Secretary of the Navy, had never, in point of fact, instructed the Fourth Auditor, T. Watkins, to allow the defendant the additional compensation charged in the aforesaid vouchers, Nos. 219 and 220, as stated in the memorandums indorsed on the said vouchers, but had only authorized him to make such allowance as he, the said Fourth Auditor, should find, on examination, to have been allowed in similar cases; and that, if the jury should believe the deposition of the said S. L. Southard, to give the correct version of his direction to the said Fourth Auditor, it would be their duty to consider the charges for commissions contained in said vouchers, as open to inquiry, and, upon all the evidence applicable thereto, to make such allowance only as they should find had been made in similar cases; and prayed the Court so to instruct the jury.”
[407]*407Mr. Coxe, for the defendant, then prayed the Court to instruct the jury, “that it is incumbent upon the plaintiffs, in order to rebut tlie said primé facie evidence, in addition to the fact that the item of claim, in question, never had been allowed by a secretary of the navy, to show, to the satisfaction of the jury, that the said claim was one which he ought not to allow; and was not authorized, under the usage which has been proved before the jury, to allow.”
The counsel of the United States, after the examination of Mr. Southard, here in court, varied their prayer thus:
“ The deposition of S. L. Southard having been read, and his testimony, as above stated, having been given to the jury, the United States prayed the Court to instruct the jury, that, if they should believe, from the evidence, that the said S. L. Southard, as Secretary of the Navy, had never, in point of fact, instructed the Fourth Auditor, T. Watkins, to allow the defendant the specific compensation of 5 per cent, charged in the aforesaid vouchers, Nos. 219, 220, but had only directed him to make such all¿wance as he, the said Fourth Auditor, should, on examination, find to have been allowed in similar cases, it would then be their duty to consider the charges for commissions, contained in said vouchers, as open to inquiry; and, upon all the evidence applicable thereto, to make such allowance only as they should find had been usually made in similar cases; or, if it should appear that no such allowance had ever been made in any similar case, then such as they should deem reasonable and just, under all the circumstances of the case.”
The Court, (nem. con.) but Moesell, J., doubting, gave this last instruction, as prayed ;
And also gave the above instruction prayed by Mr. Coxe, excepting the last danse in these words, “ and was not authorized, under the usage which has been proved before the jury, to allow.”
Mr. Coxe then prayed the Court to append to the instruction last given, at the prayer of the United States, the following instruction, namely: “ But, if the jury shall believe, from the said evidence, that Mr. Southard, as Secretary of the Navy, did direct the. Fourth Auditor to allow the said claim, specifically, to the extent of 5 per cent, on the amount of said disbursements, as claimed in said vouchers; or, having decided that the said defendant was entitled to an allowance for said services, and that the commission of 5 per cent, was a proper and adequate compensation for such services; and referred to the auditor to examine whether said allowance was in conformity with precedents in other cases, for like extra official disbursements by officers belonging to, or attached to, the navy, by the direction or sanction [408]*408of the secretary; and if the jury shall, further find, from the said evidence, that, for similar disbursements of ah official character, settled in the said auditor’s office, sanctioned and allowed by the secretary, the commission of 5 per cent, had been allowed, that then the said auditor was authorized to make such allowance, and to make such indorsements as appear on the said vouchers; and that such indorsement amounted, in law, to an actual allowance by the secretary himself.”