author: Mr. Justice "WAYNE

text:
    Catharine Hill, Plaintiff in error, v. Joseph W. Tucker, Executor of Abner Robinson, deceased.
    The relations or privity between executors and their testators in Louisiana, do not differ from those which exist at common law.
    The interest of an executor in the testator’s estate is what the testator gives him; that of an administrator, only that which the law of his appointment enjoins.
    Hence, executors in different are, as regards creditors of the testator, executors in privity, bearing to the creditors, the same responsibilities as if there was only one executor.
    Although a judgment obtained against an executor_in one State is not conclusive upon an executor in another State, yet it may be admissible iij evidence to show that the demand had been carried into judgment, and thaf'the other executors were precluded by it from pleading'prescription or the statute o'f limitations upon the original cause of actión.
    Therefore, where a person appointed executors ih Virginia, and also in Louisiana, and the creditors obtained'judgments against tEe Virginian executors, without being able to obtain payment, and then sued the executors in Louisiana, the Virginian . judgments were admissible evidence for the above-mentioned purposes.
    The law of Louisiana bars, by prescription, all actions brought upon instruments negotiable or transferable by indorsement or delivery, unless such actions are brought within five years. But this does not include due-bills or judgments.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

      It was argued in conjunction with the succeeding case of Goodall v. Tucker, but the facts being somewhat different, they are reported' separately.
    On the 6th of December, 1842, Abner Robinson, of the city of Richmond, Virginia, made his last will, and appointed William R. Johnson and Joseph Allen, of Virginia, and Thomas Pugh and Joseph W. Tucker, of Louisiana,, his executors.
    On the 21st ‘of December, 1842, the will was proved in Virginia, and letters testamentary granted to Johnson and Allen, the executors.
    Tucker qualified as executor in Louisiana, but at what time the record did not show.
    On the 29,th of February, 1848, Catharine Hill filed her petition in the Circuit Court of the United States for the Eastern District of. Louisiana against Tucker, as executor.
    The proceedings in the Circuit Court, together with the points excepted to, are all stated in the opinion of the court, and need not be repeated.
    It was argued in this court by Mr, Johnson and Mr. Duncan, for the plaintiff in error, and Mr. Taylor, for the defendant in error.
    The’ points made by the counsel for the plaintiff were the following:
    1. That the judgments in Virginia were evidence against the defendants, they being coexecutors with the defendants in such judgments. Stacy v. Thrasher, 6 How. 58; 1 Salk. 299; 1 Com. Dig. Adm’r, B. 9; 2 Bla. Com. 507; Dixon’s Ex’rs y. Ramsay’s Ex’rs, 3 Cra. 319, 1 Cond. Rep. 547; 3 Bac. Ab,‘. Ex’rs and Adm’rs, p. 30, 52.
    2. That if the judgments were riot evidence, the plaintiffs were entitled to recover upon the original causes of action, they being proved, and not being barred by the Louisiana law of prescription. • Article 8505 of the' Civil Law says: “ Actions on bills of exchange, notes payable to order or bearer, except bank-note's, those of all effects negotiable or transferable by indorsement on delivery, are prescribed by five years, reckoning' from the day when these engagements were payable.” Article 3517 provides that “ a citation served upon one joint-debtor, or his acknowledgment of the debt, interrupts prescription with regard to all others, and even, their heirs.”
    In Goodall’s case the suit was brought on the 29th February, 1828, less than ten years after the bond sued upon matured.
    In Louisiana ten years is the limitation-, ■ and the law upon the subject is always the law of the forum. Lacoste v. Benton, 3 .La. An. Rep. 220; Spiller v. Davidson, 4 Id. 171; Graves v.
      Routh, Adm’r, 4 Id. 127; Young v. 'Crossgrove, Id. 234, 235; Wheeling v. Preston, 12 Rel. 141; 2 La. An. Rep. 315, 646; Story’s Conflict of Laws, 576.
    In Hill’s case the same authorities are referred to, and she had a right to sue in her own name, she having been recognized by the District Court as universal legatee, and being assignee of the judgments. 10 Mart. Rep. 117; 2 N. Series, 296.

      Mr. Taylor, for defendant in error.
    Upon the trial of the cause, the court decided, as if instructing a jury, these two propositions:
    1st. That the Virginia judgment against Joseph Allen and William R. Johnson, executors of the last will and testament of Abner Robinson, appointed and qualified under the will in Virginia, was not evidence against the defendant; • and
    2d. That the original cause of action as to the defendant was barred by prescription, and the plaintiff excepted to the two decisions, If there be no error in these decisions, the judgment of the court below must be affirmed.
    I. In Louisiana, testamentary executors are merely administrators, in the most limited sense of the term. They have none of the qualities, capacities, or rights of executors under the common law. No argument, however extended, would make this clearer than a simple reference to the articles of the Louisiana Code, relating to the administration of estates of decedents under the authority of law. Articles 1091, 1106 to 1123, 1126 to 1148, provide for the appointment of persons .to administer the estates of persons dying intestate. Articles 1651 to 1655, 1670, 1671 and 1672,1659, 1661, 1662, 1663 1666 to 1668 provide for the appointment of persons to administer the estates of persons who leave testaments, and define their powers. From an examination of. these articles, it will be at once apparent that a testamentary executor differs in no respect, so far as to his rights, powers, and duties, from the ordinary administrator. And if this be true, then it is certain that the record in question could not be evidence against the defendant, for, as the learned Story has remarked in his Conflict of Laws, sect. 522, “ When administrations are granted to different persons, in different States, they are so far deemed independent of each other, that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration; for in contemplation of the law there is no privacy between him and the other administrator.” Without citing other authorities on this point, I will merely refer to the case of Stacy v. Thrasher, decided by this court, (6 Howard, 58,) in which the doctrine is fully recognized. .See Deneale v. Stumps’s Ex’rs, 8 Peters, 531. If it be true, as there stated by Chief Justice Marshall, that “it is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them,” and that “ it could not be given in evidence against them,” it is not easy to perceive that there was error in this decision.
    II. The law of the forum applies as to prescription. Code of Practice, 13; Story’s Conflict of Laws, sect. 576, 578; LeRoy v. Crowninshield, 2 Mason, 151; Huber v. Steiner, 29 Eng. C. L. Rep. 308, (2 Bingh. N. C. 202.)
    Actions “ on all effects negotiable or transferable by indorsement or delivery, are prescribed' by five- years, reckoning from the day when these engagements were payable.” C. C. of La. 3505. And this prescription runs “ against persons residing out of the State.” C. C.- 3506.
    To make our law of prescription applicable, it is necessary that the obligation sued on be one transferable by indorsement or delivery, and the question whether it be in fact so transferable is to be decided by the law of the place where the contract was entered into. Story’s Conflict of Laws, sect. 242; Code of Practice of La. 13. Is the bond sued on negotiable or transferable by indorsement or delivery ? This must be determined by the common law, as received and in force in the .State of Virginia, where the instrument under consideration was executed.
    I will not weary the court by going into an examination of the original effects of assignments of incorporeal rignts under the common law, or of the modes of enforcing them. Nor will I. give an account of the origin and peculiar character of bills of exchange, growing out of the necessities of trade. It is sufficient for my present purpose to remark that promissory notes, notwithstanding the exigencies of commerce, did not acquire this peculiar feature, —the capacity of being transferred by indorsement or delivery, — until it was given to them by the statute of Anne, when, for the first time under the common law, they were made assignable at law, and were placed on the same footing as bills of exchange. Bonds and other instruments in writing were made assignable in the same manner in Virginia, by statute, in 1748,. which was confirmed by the act -of 1786. 1 Rev. Code, 484. Such brands as the one sued on became, from the adoption of these statutes in Virginia; transferable- by simple indorsement, or by mere delivery. Seymour v. Van Slyck,, 8 Wend. 421; Downing v. Backenstoes, 3 Caines, R. 136. And the very point has been determined in Virginia. Makies’s Ex’rs v. Davis, 2 Washington, 219; .Drummond v. Crutcher, Id. 218.
   Mr. Justice "WAYNE

delivered the opinion of the court..

This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

It was argued with the case of Goodall v. Tucker, but the facts being somewhat different, and the prayers to the court not exactly alike in both cases, it will'.be necessary to consider'them separately.

First then as to Catharine Hill’s case.

She filed a petition in February, 1848, in the Circuit Court of the United States for the Eastern-District of Louisiana against Tucker, the executor of Robinson. '.She was the widow and sole devisee of James P. Wilkinson, who resided in Richmond, Virginia, and after his death intermarried with Hill, by whose authority she prosecuted this suit.

Robinson lived also in Richmond, although his property was chiefly situated in Louisiana. In. December, 1842, Robinson died in Richmond, having made a will a few days before his death, and appointed, as executors, William R. Johnson-and Joseph Allen, of Virginia? and Thomas Pugh and Joseph W. Tucker, of Louisiana. Johnson and Allen qualified as executors in Virginia, and Tucker in Louisiana.

The causes of action, in the suit brough by Catharine Hill, were the four following, which will be separately noticed under the letters A, B, C, D,

[A] On the 9th of December, 1839, Archer. Cheatham made a promissory note, payable ninety days after date, promising to pay to the order of Abner Robinson and Isham Puckett, one thousand dollars, negotiable and payable at the Bank of Virginia. It was indorsed by Robinson and Puckett, and came into the possession of Wilkinson. Not. being paid at maturity, it was protested.

In. March, 1840, Wilkinson brought an action against the drawers and indorsers; in the Circuit Superior Court of Henrico county, Virginia, and recovered a judgment.

In July, 1840, he issued an execution, which, in August, was suspended until further orders. Cheatham and Puckett soon afterwards took the benefit of the Bankrupt Act passed by . Congress. Nothing further was done as to this claim until Catharine Hill filed her petitiop as above stated.

[B] On the' 20th of November, 1840, Robinson gave the following due-bill.-

“ $575. Richmond, November 20,1840. Due James P. Wilkinson; for value received (viz., cash loaned) five hundred- and seventy-five dollars. Given under my hand this day aqd -date as above written. Abner Robinson.”

In February, 1843, Wilkinson brought a suit in the Henrico County Court, against Johnson and Allen, the Virginia executors of Robinson, and in the ensuing June obtained a judgment. A fi. fa. was issued, but the return was no effects found.”

[C] , On the 19th of August, 1842, Robinson made the following single bill

“ $200. Richmond, August 19th, 1842. Due James P. Wilkinson, two hundred dollars for money borrowed this day, as per check on the Farmers Bank of Virginia, of the same date, &c. Given under my hand and seal as above.' Abner Robinson. (Seal.)”

In February, 1843, Wilkinson brought a suit against Johnson and Allen, upon this bill, and obtained a judgment in the following June. A fi. fa. was issued upon this and the same return made as in the preceding cases, viz. no effects found.”

[D] In October, 1843, one Boiling S. Dand’ridge brought a suit against Robinson for two hundred dollars, being one year’s wages as overseer. After Robinson’s death, it was revived against his executors.- In August, 1843, Dandridge obtained a judgment, and issued a fi. fa.; but the same return was made as above, viz. “ no effects found.” On the 1st of February, 1845, Dandridge assigned this judgment-and execution to Wilkinson.

Not long after this, Wilkinson died. The record does not show when, but in April, 1846, a succession was opened in Louisiana, upon his estate, and after sundry proceedings in opposition, which it is not material to mention, his widow, Catharine, was recognized as the rightful representative of the estate. But this did not take place until May, 1847. In the mean time she had taken out letters testamentary in Virginia, in ’August, 1846, and married Hill in December, 1846. 1

On the 29th of February, 1848, Catharine Hill filed her petition against Tucker, in the'Circuit Court of the United States for the Eastern District of Louisiana, claiming the several sums of money mentioned in the four preceding classes.

Tucker filed his answer, alleging “ that the judgments set forth were obtained in Virginia, in proceedings to which, he, in his capacity of executor, was no party,, and that they are therefore not binding on the succession of Robinson in Louisiana. That on one of the obligations, to wit, that made by Cheatham for $1,000, dated 9th December, 1839, Robinson, if he indorsed at all’, was joint indorser with one Puckett, and was in law bound only for one half of the sum. That the actions on the demands upon which these judgments rest, are barred by the prescription of five years.”

The cause came up for trial before the court without a jufy,. in November, 1849, when a judgment was .given against-Tucker. This was afterwards stricken out and a new trial granted; Tucker then filed a supplemental answer by 'way of peremptory exceptions to the petition, as a plea of prescription. It stated, in substance,,that as to the judgment for $1,000 against Robinson, which was rendered during his lifetime, the plea of limitations was interposed; that Allen arid Johnson were qualified as executors in Virginia, on the 21st of December, 1842, and that more than five years elapsed between the date of such qualification and the institution of this suit; and that by the statutq of limitations of the Stdte of Virginia, the claim was barred by the expiration of five years.

In May, 1850, the cause came up for argument a second time before the court. At the trial, th'e causes of action designated as B, C, and D, were proved by’ evidence in Virginia, taken under a commission, and records of the.court as to the several judgments were given in evidence. The other facts, above stated, were also proved.

After the evidence was closed the plaintiff asked the court to decide, as if instructing a jury upon the evidence, as follows:

“ 1st. The' testator, Robinson, resided and died in Virginia, leaving a will, which was duly proven in the proper tribunal after his death, in and by which he appointed the defendant and others his executors, and two only of his executors made probate, and qualified in the proper court in Virginia; and if suits were instituted by the- plaintiff, and by others-who have- assigned their judgments and the causes of action on which their judgments were founded to the plaintiff, against the executors of Robinson, who qualified in Virginia, and obtained judgments against those executors in the appropriate courts of Virginia having jurisdiction óf -such matters; and if upon those judgments executions issued and were returned by the proper officers in substance nulla bona; aiM. if the defendant, a citizen of Louisiana, who never qualified as- executor in Virginia, is a. eo-executor of the same estate, who has proved the will in Louisiana, and taken on himself the execution thereof in Louisiana, has in hands ample assets in Louisiana, to pay all debts; and if the evidence fully establishes these facts, that then the judgments so rendered in Virginia, are evidence against, the executpr in Louisiana in this suit.

2d. That by the laws of Louisiana judgments- are assignable, and -that upon assigned judgments the assignee can maintain an action in his or her own name therefor.

3d. That under such a will as that of Robinson, produced in this cause, the co-executors, although in different States, that .qualified and acted, derived the same powers from the same source over the same estate, and that unlike administrators, they are to such estate of the decedent privies in estate; and the exemplifications of the records of the courts of Virginia, duly arithenticated, which have been read in this cause, showing judgments against the only executors of Robinson who qualified in Virginia, in the appropriate court of probate of the domicil of the deceased, are evidence against the co-ex;ecutor who .qualified in Louisiana, and holds abundant assets in Louisiana.

4th. That if plaintiff were not entitled to recover against defendant on the production of the records showing the judgments against the co-executors in Virginia, and that those judgments were unsatisfied, because of a lack of assets in the hands of 'the Virginia executors to satisfy the same, that they would be entitled to recover, on producing the further evidence to prove that those judgments in Virginia were rendered on good and valid, and subsisting and. unsatisfied, causes of action against the testator, Robinson.

5th. That the plaintiff has produced sufficient proof of the ■several causes of action, on which the judgments read in evidence were founded, to justify a jury in finding for the plaintiff upon those several original causes of action.*

6th. That the several causes of action set forth in the petition, independent of the judgments rendered thereon against the co-executors in Virginia, are not, upon the testimony in this cause, barred- by prescription.

7th. That upon all the evidence in this cause a jury might and .should find a verdict for the plaintiff.

8th. That the several suits in Virginia, of which the records have been read, operated as a judicial interpellation to stop the running of prescription upon those several demands in favor of the defendant.

And the defendant objected to said several propositions, and the court sustained his objections, and decided all and each of the several propositions against the plaintiff, except the aforesaid proposition, No. 2; and to each of said decisions separately the plaintiff excepted.

And the defendant asked the court to decide —

1st. That no one of the records, read to the court in this cause, showing judgment against his co-executors in Virginia, was evidence against the defendant.

2d. That each and every one of the causes of action, set' forth in the "petition, and, to which evidence had been-adduced, was barred as to said defendant by prescription.

3d. That upon the whole evidence offered the plaintiff was not entitled to recover; and that upon the evidence a jury could rightfully, and should, find a verdict for the defendant; to each of which plaintiff objected.

And the court overruled the several objections of plaintiff, arid decided as asked by the defendant; and to each of said opinions of the court, the plaintiff excepted." .

We cannot concur in the suggestion made in the argument of this case, that the relations or privity between executo/s and testators, in Louisiana differ from such as exist at common law. Louisiana, in her code, without adopting the terms of the civil law, makes the same distinction as is made at common law, between one called upon. $o administer the estate of an intestate, and one appointed to the office of executor by á testator. The responsibilities of both, as to the mhnner of settling the estate' which they represent, depend upon the law of the State; but *the relation between executor and testator is altogether different. The executor’s interest in the testator’s- estate is what the.testator gives him. That of an administrator is only that which the law of his appointment enjoins. The testator may make-, the trust absolute or qualified, in respect to his estate. It may be qualified as to the subject-matter, the place where the trust shall be discharged, and the time when the executor shall begin and continue to act' as such. He may be executor for ■ one or several purposes — for a part of the effects in possession of the testator.at the time of his death, or for such as may be in aetion, if it be only for a debt due. But though the executor’s trust or' appointment may be limited, or though there are several executors in different jurisdictions, and some of them limited executors, they are, as to the creditors of the testators, executors in privity, bearing to the creditors the same responsibilities as if there was only one executor. The privity arises from their obli'-. gations to pay the testator’s debts, wherever his effects may bej just as his obligation was to pay them. The executor’s interest in the testator’s estate is derived from the will, and vests from the latter’s death, whatever may be the . form which the law requires to be observed before an executor enters upon the discharge of his functions. When within the same political jurisdiction, However many executors the testator may appoint, all of them may be sued as one executor for the debts of the tes-" tator, and they may unite in a suit to recover debts due to their testator, or to recover property out of possession.

All of them, then, having the same privity with each other and. to the testator, and the same responsibility to creditors, though they may have been qualified as executors iff different sovereign-ties, an action for a debt due by the testator; against any one.of them in that sovereignty where he undertook to act as executor, places all of them in one relation concerning it, and as to the' remedies for its recovery: what one may plead to bar a recovery, another may plead; and that which will not bar a recovery against any of them, applies to all of them. Between administrators deriving their commissions to act from different political' jurisdictions, there is no such privity. This court has treated of this fully in two .cases: In the case of Aspden and others v. Nixon and others, 4 How. 467, and in Stacy v. Thrasher, 6 How. 44. We refer to the former without citing any part of it, but it is full upon the point, and may be instructively read. But we shall cite a passage from Stacey v. Thrasher on. account of its appropriateness to what has just been said in respect to the want of. privity between administrators deriving their powers, in different jurisdictions.

“ An administrator under grant of administration in one State stands in none of these relations- — of privity — to another administrator in another State. Each is privy to the testator, and would be estopped by a judgment against him, but they have no privity with each other in law or estate! ■ They receive their authority from different sovereignties, and over different property. The authority of each is paramount to the qther.’ • Each is administrator to the ordinary from which he receives his comrpission. Nor does the one come by succession to the other into the trust of the same property, incumbered by the same debts, as in the case of an.administrator de bonis non, who may truly be said to have an official privity with his predecessor in the same trust, and therefore liable to the same duties.” In that case, as a consequence of such reasoning, it was determined that an action .of debt will not lie against an administrator in one of the United States,-on a judgment obtained against a.different administrator of the same intestate, appointed under the authority of another State.1

For the same reasons, notwithstanding the privity that there is between executors to a testator, we do not think that a judgment obtained against one of several executors would be conclusive as to the demand against another executor, qualified in a different State from that in which the judgment was rendered. But such a judgment may be admissible in evidence-in a suit against an executor in another jurisdiction, for the purpose of showing that the demand had been carried into judgment in another jurisdiction, against one of the testator’s executors, and that the others were precluded by it from pleading prescription or the statute of limitations upon the original cause of action. Such is the case certainly in Louisiana, as may be seen from the case of Jackson v. Tiernan,in 15 Louis. Rep. 485. ' The Supreme Court of that State, speaking by Judge Martin, says, that the plea of prescription cannot prevail in behalf of one joint debtor, if a suit has -been brought against another in the Circuit Court of the United States for the District of Marylanc meaning thereby, we presume, if it had been commenced in any other court in the United States. When, then, the court below rejected, as inadmissible in evidence in this case, the judgment obtained in Virginia against Allen and Johnson, the executors of Robinson in that State, we think it erred, and that it should have been admitted forthe purposes mentioned. The court also instructed the jury, that the causes of action in this suit against .Tucker, the co-executor of Allen and Johnson, were barred by prescription. In this we think there was error. The article of her code upon which that instruction was given, 3505, is in these words: Actions on bills of exchange, notes payable to order or bearer — except bank notes — those of all effects negotiable or transferable by indorsement or delivery, are prescribed by five years, reckoning from the day when these engagements are'payable.” It is not applicable to either of the causes of action set out in the plaintiff’s petition. It is not so to Cheatham’s note, indorsed by Robinson, because, being carried into judgment in Robinson’s lifetime, it estops all his executors anywhere, from denying it, and obliges them to pay it out of his assets wherever they may be. So it would be if, instead of executors, they were administrators in different • States,- as was said in Stacey and Thrasher’s case, that each administrator is privy to-the testator,, and would be estopped by á judgment against him. The prescription of Louisiana, also, is not applicable' to the due-bill ■given by Robinson to Wilkinson, for $575, or- to that for $200 for money borrowed from Wilkinson, neither of them being negotiable by the law of Virginia or by the law of Louisiana, and therefore not within the article of prescription. For the samé reason it is not applicable to the judgment obtained by Dan-dridge for $200, for overseer’s wages due by Robinson, and which was assigned to Wilkinson. In this view of the case, we shall direct the judgment given by the court below to be reversed, and.that the case shall be remanded for further proceeding, in conformity with this opinion.'

Order.

■ This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court,-with directions to proceed therein in conformity to the opinion of this court."


source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    Charles P Goodall, Plaintiff in error, v. Joseph W. Tucker, Executor of Abner Robinson, deceased.
    The principles laid down in the preceding case of Hill'w. Tucker, again affirmed.
    This case, like the preceding one, of Hill v. Tucker, was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.
    They were argued together, and differed only in there being different plaintiffs. The cause of action in this case is stated in the opinion of the court; and the reader is referred to the report of the preceding case for the arguments of counsel.
   Mr. Justice WAYNE

delivered the opinion of the court.

This cause was tried by the judge without a jury and the legal propositions raised by counsel in the course of the trial were decided by him, to "which exceptions were taken, as if they had been instructions to a jury.

The cause of action is' the following single bill, which was executed at Richmond in Virginia:

“ On demand, we, Abner Robinson, Isham Puckett, and J. P. Wilkinson, promise to pay to Charles P. Goodall, his executors or administrators, the sum of four thousand nine hundred and twenty-six dollars and twenty-seven cents, ($4,926.27,) lawful money of these United States, for the faithful performance .of which promise we bind ourselves, our heirs, executors, administrators, and assigns, as witness our hands and seals, this 6th day of September, 1839. ~ Abner Robinson. seal.

Isham Puckett.

James P. Wilkinson.”

SEAL.

SEAL.

It may as well be here stated that it. was proved upon the trial that Wilkinson and Puckett were sureties and that the debt had been reduced to $1,432, with interest from the 1st January, 1846=

In October, 1842, Goodall brought suit in the Henrico County Court against the three obligors. Robinson was too ill to attend to the process, and afterwards died. The suit was prosecuted to judgment against Wilkinson in MEarch, 1843, and abated as to the other defendants.

Execution was awarded upon, the judgment and a return made “ no effects found.”

In February, 1848, Goodall filed his petition against Tucker in the Circuit Court of the United States for Louisiana, alleging the above facts; when the same proceedings took place which are mentioned in the case of Catharine Hill.'

There is a good deal of documentary evidence in' the- record, which we shall not notice, as it does not in any way affect the decision which should have been given upon the prayers of the plaintiff. See preceding case of Hill v. Tucker.

Those prayers were, with the defendant prayers, as follows :

After the evidence was offered the plaintiff asked, the court to decide, as if instructing a jury upon the evidence :

1st. That if the testator Robinson by his will left four executors, that Joseph Allen and W. R. Johnson, citizens of Virginia, were two of those executors; and if they only qualified in Virginia, in the county of the domicil of the .testator; and if the plaintiff, upon a valid and subsisting cause of action, instituted suit in the Henrico County Court, in Virginia, against the only executors of the testator who had qualified; and if the plaintiff had obtained judgment regularly in that court, and it . was. a court of competent jurisdiction to hear and determine said cause; and if the plaintiff, having thus obtained judgment against the only qualified executors of the domipil of the decedent, regularly issued his execution on that judgment, and had thereon a return by the sheriff of nulla bona; and if the defendant was also an executor of the same testator appointed by the same will, and as such had. taken upon himself the execution of said will according to the laws of Louisiana, where he resided; and if, as executor of Robinson, the defendant has ample estate of his testator in his hands to pay the debts; and if all these facts are proven and established by the evidence, that then the -plaintiff is entitled to recover judgment against the defendant for the amount of the judgment against the executors who qualified in Virginia.

2d. That the exemplification of the record and the judgment obtained by the plaintiff against the executors Allen and Johnson, and the return of. nulla bona thereon, are evidence against the defendant, a co-executor in Louisiana.

3d. That co-executors, unlike co-administrators, ace privies in estate, because they derive the same privities over the same estate from the samé will; and that under the will' of Robinson, which was read,- and the proofs of the qualification which were-offered in this case, the plaintiff is entitled to recover against the defendant the amount of the judgment obtained by him against the only acting executors of the domicil of the- decedent.

4th. -That if the plaintiff is not authorized to recover against the defendant on the mere production of the record of the judgment against his co-executors in Virginia, who alone made probate of the will there, and qualified, that he is. entitled to recover, on proving* that the original cause of action on which that -judgment was-founded was- a just, valid, and - subsisting .demand against the testator Robinson, and the additional fact that the estate in the hands of the executors of the domicil of the testator in Virginia Was exhausted, and that the defendant or co-executor has ample estate in his hands in Louisiana.

5th. That independent of the record of the judgment in Virginia, the plaintiff has a right to recover against the defendant as executor of Robinson, upon the bond filed and proven, the amount of the balance due on that bond.

6th. That the original cause of action on which the judgment in the Henrico County Court is established and proven and a recovery thereon is not barred by the prescriptive laws’ of Louisiana.

7th. That upon all the evidence offered, the plaintiff is entitled to a judgment in his favor.

8th. That the spit in Virginia against the co-executor- was a judicial-interpellation which would stop the running of prescription against the demand which was the cause of action in that suit. All of which the court overruled, and the plaintiff excepted.

And upon the facts proven the defendant asked the court to decide: 1st. That the Virginia judgment against the co-executors was not evidence against the defendant; 2d. That the original cause of action on which that judgment was rendered was barred as to the defendant by prescription; and, 3d. That upon the whole evidence the defendant was entitled to judgment in his favor. To all which plaintiff objected, and the court overruled his objections, and gave the decisions as asked by defendant; and to these several opinions plaintiff excepted.

And the defendant objected to each and all of said propositions, and the court sustained severally the objections of defendant, and refused to decide any one of said propositions as asked by the plaintiff. To each of which several opinions and decisions the plaintiff at the time excepted.”

The court in sustaining the latter has erred.

We think that ail of the prayers for the plaintiff were properly made, and that conjointly they make an issue decidedly in his favor. See opinion in case of Hill v. Tucker.

We shall not notice them more particularly than to say, that the suit upon the bond in Virginia, was a judicial interpellation which stopped the Louisiana prescription from running against the cause of action in that suit and in this suit.

Further the record shows that this suit was brought in Louisiana within the time that its law fixes for prescribing actions upon such a demand.

The judgment is reversed, and the case will be remanded for further proceedings in conformity with this decision.

Order.

This cause came on-to be heard on the transcript of the récord from the Circiiit Court of the United States for the Eastern District of Louisiana, and was- argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to proceed .therein in conformity to the opinion of this court.


author: Mr. Justice GRIER

text:
    Jerome B. Pillow, Plaintiff in error, v. Truman Roberts.
    Where a deed, executed iu Wisconsin, and attested by tbe seat of a court, stamped upon tbe paper, instead of wax or a wafer, was offered in evidence upon a trial in • Arkansas, it was properly received.
    Where a deed from the sheriff, for land sold at a tax-sale, recited an assessment for taxes which remained unpaid; the advertisement of the land, and offering it for sale; its being struck down to the highest bidder, who paid the purchase-money and received a certificate; this deed ought tó have been received in evidence. The law of Arkansas says, that the deed shall be evidence of the regularity and legality of the sale.
    But, even if this deed had been insufficient as a proof title, it ought to have been received, in connection with proof of possession, to establish a defence under the statute of limitations.
    Possession under this deed would have been sufficient proof for adverse nossession. .
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Arkansas.
    The circumstances of the case, and the points of law upon which it came up to this court, are fully stated in its opinion.
    It was argued by Mr. Lawrence and Mr. Pike, for. the plaintiff in error, and Mr. Oriiterlden, for the defendant in error.
   Mr. Justice GRIER

delivered the opinion of the court.

Roberts, t-lie defendant in error, was plaintiff below, in an action of ejectment for 160 acres of land. Pillow, the defendant below, pleaded the general issue, and two special pleas: The first, setting forth a sale of the land in dispute, for taxes more than five years before suit brought: The second, pleading the statute of limitation of ten-years. These pleas were overruled' on special demurrer, as informal and insufficient; and the judgment of the court on this subject-is here alleged as error. But as the same matters of defence were afterwards offered to be laid before the jury on the trial of the general issue and overruled by the court, it will be unnecessary to further notice the pleas; as the defence set up by them, if valid and legal, should have been received and submitted to. the jury on the trial. In the action of ejectment, (with the exception, perhaps, of a plea to the jurisdiction,) any and every defence to the plaintiff’s recovery may be given' in evidence under the general issue. And as the decision of' the court on the bills of exception will reach every question appertaining to the merits of the cáse, it will be unnecessary to decide whether those merits were sufficiently set forth in the special pleas, to which the defendant was not bound to resort for the purpose of having the.benefit of his defence.

On the trial, the plaintiff below gave in evidence a patent for the land in dispute, from the United States to Zimri V. Henry, dated 7th May, 1835; and then offered a deed from said Henry to himself, dated 10th November, 1849. This deed purported to be acknowledged before the clerk of the Circuit Court of Walworth county, in the State of Wisconsin, and was objected to, 1st. Because there was no proof, of the identity of the grantor with the patentee other 'than the certificate contained in the ácknówlédgmént. 2dly. Because the certificate of acknowledgment was not on the same piece of paper that. contained the deed, but on a paper attached to it .by wafers. And 3dly. Because the seal of the Circuit Court authenticating the acknowledgment was an impression stamped on paper, and not “ on wax, wafer, or any other adhesive or tenacious substance.”

The^ first two of these grounds of objection have not been urged in this court, and very properly abandoned as untenable. The third has been insisted on, and deserves some niore attention. Formerly vVax was the most convenient; and the only material used to receive and retain the impression of a seal. Hence it was said: “ Sigillum est cera impressa; quia cera, sine impressione, non. est sigillum.” - But this is not an allegation, that an impression without wax is not a sea1. And for .this reason courts have held, that an impression' made on. wafers or other adhesive substance-capable of receiving an impression, will come within'the definition of “ cera impressa.” If, then, wax be'construed to be merely a general term including within it any substance capable of receiving and retaining the impression of a seal, we' cannot perceive why paper, if it have that capacity, should riot as well be included in the category. ■ The simple and powerful machine, now used to impress public seals, does not require any soft or adhesive substánce to receive or retain their' impression. The impression made by such a power on paper is as well defined, as durable, and less likely to be destroyed or defaced by vermin,,accident, or intention, than that made on wax. It is the seal which authenticates, and not the substance on which it is impressed;. and where the court can recognize its identity, they should not be called upon to analyze the material which exhibits it. In Arkansas, the presence of wax is not necessary to give validity to a seal; and the fact that the public officer in Wisconsin had not thought proper to use it, was sufficieiit to raise the presumption that such was the law or custom in Wisconsin, till the contrary was proved. It is time that such objections to the validity of seals should cease. The court did not err, therefore, in overruling the objections to the deed offered by the plaintiff.

After the plaintiff had closed his testimony, the defendant offered in evidence two certain deeds from Miller. Irwin, sheriff of Phillips county, and assessor and collector of taxes therein, to Richard Davidson, dated on the 22d of October, 1844; one for the north half, and the other for the south half of the quarter section of land now in dispute. On objection, the court refused to permit these deeds to be received, and sealed a bill of exceptions. The defendant then offered the same deeds to Davidson, and in connection therewith, a deed from Davidson to Armstrong, and also a deed front Armstrong to the defendant; and to accompany them with proof of possession by himself and those under whom he claims, for more than ten years, as to the south half of said land, and more than five years as to the whole of it. The plaintiff objected to this evidence. “ And it was by the -roúrt ruled, that the possession of such deeds, accompanied by possession of the land, was not sufficient to prove such possession of the land to.be adverse to the plaintiff ánd his grantor without further proof that the defendant or his grantors claimed adversely; so the court refused to permit any deeds to be read in evidence to the jury.”

These bills of exception may be considered together. They present two questions, 1st.. Whether, by the law of Arkansas, the deeds offered in evidence (arid which were regularly acknowledged and recorded according to law) should have been permitted to go to the jury as evidence of a regular, sale of the land mentioned therein for taxes. And 2dly. Whether, without regard to their validity as elements of a good legal title per se, they should not have been received for the purpose of showing color of title, in connection with possession by.the persons claiming under them, for a length of time sufficient by .law to bar the entry of plaintiff.

I. In considering these questions, it will not be necessary, to set forth at length all the provisions of the revenue laws of Arkansas.for compelling the payment of taxes assessed on land. A brief recapitulation of their most proiriinent provisions will suffice. These laws make it the duty of the collector, on or before the 15th of September of each year, to make a list of lands assessed to persons non-resident, ánd the tax due thereon, with a penalty or addition of 25 per cent., and to file this list with the' county clerk. He is directed, also, to set up a copy of the same at the court-house, and to publish it in a- newspaper at least four weeks before the first Monday of November, giving notice that unless the taxes shall be paid on or before that day, the land will be sold. On that day, the collector is authorized to offer for sale, at public auction, such tracts or lots of land, or so much of them as will be sufficient to raise the taxes and penalty assessed and unpaid, and to continue the sales from day to day.' The purchaser to pay down forthwith the amount of taxes, &c., and receive a certificate describing the land purchased, directing, if necessary, the public surveyor to lay off the part pur-, chased by metes and bounds after one year allowed for redemption. This certificate, which is made assignable, may be presented to the collector, who is authorized to execute and deliver á deed to the.holder of it for the land described theirein. The follows the 96th section of the act, which is a& follows: •

The deed so made by the collector shall be acknowledged and recorded as other, conveyances of lands, and shall vest in the grantee, his heirs, or assigns, a good and valid title both in law and equity, and shall be received in evidence in all courts of this State as a good and valid title in such, grantee, his heirs, or assigns, and shall be evidence of ■ the regularity and legality of the sale of such lands.”

The deeds offered in evidence were regularly acknowledged and recorded. It is not denied that Irwin, the grantor therein, was sheriff, assessor, and collector, of taxes in the county of Phillips, as he is described in the deed. The deed for the south half recites an assessment of the same for taxes in 1839, according'to law; that the taxes remained unpaid; that the land was regularly advertised and offered for sale on the 5th'of November, 1839, by auction; struck down to William Yales, who paid the purchase-money and received a certificate ; that the time for redemption having long expired, and Richard Davidson become the assignee or holder of the certificate; therefore the said collector granted, &c., the said south half to said Davidson, his heirs,. &c.

"The deed for the norfh.half has.similar recitals, showing a tax assessed in 1840, a sale in 1841, to John Powell, and a certificate transferred by him to Davidson.

These deeds come within the description of the 96th section. They are made by a collector of the. revenue; they are acknowledged and recorded according to law; they purport to be for land assessed for taxes, and regularly sold according to law; and the law enacts that deeds, so made, shall he evidence not only of the grant by the collector, but of the regularity and legality of the sale of the land described therein.

It is easy, by very ingenious and astute construction, to evade the force of almost any statute, where, a court is so disposed. "Wei might say that the expression, “ deeds so made by the collector,” means deeds made strictly according to the requirements of all the preceding sections of the revenue law, and decide that only deeds first, proved to be completely regular and legal can be received in evidence; and thus, by qualifying the whole section by such an enlarged construction of these two words, and disregarding all the others, evade the obvious meaning- and intention of the law. For if you must first prove the sale to be regular and legal before the deed can be received, what becomes of the provision that the deed itself shall be evidence of these facts ? Such a construction annuls this provision of the law, and renders it superfluous and useless. The evil plainly intended to be remedied by this section of the act, was the extreme difficulty and almost impossibility of proving that all the very numerous directions of the revenue act were fully complied with, antecedent to the-sale and conveyance by the collector. Experience had shown, that where such conditions were enforced, a purchaser at tax-sales, who had paid his money to tíre goverhment, and expended his labor on the faith of such titles in improving the land, usually became the victimt of his own credulity, and was evicted by the recusant owner or some shrewd speculator.' The power, of the legislature to make the deed of a public officer ■primd facie evidence of the regularity of the previous proceedings, cannot be doubted. And the owner' who neglects or refuses to -pay his taxes or redeem his land has no right to com-' plain of its injustice. If he has paid his'taxes, or redeemed his land, he is, no doubt, at liberty to prove it, and thus annul the sale. ■ If he -has not, he has no right to complain if he suffers the legal consequence's of his own neglect, -

The plain and obvious intention of the legislature is clearly expressed in this 96th section, that the deed*-made by a collector of taxes, as authorized in the preceding section, when acknowledged-and recorded, should be received in evidence as' a. good and valid title-, and that the recitals of the deed showing that it was made in pursuance of a sale for taxes, should be- evidence of the regularity and legality of the sale úlider and by virtue of that act. The deed being thus made, per se, primd facie evidence of a legal sale and a good title, the court wte're bound to receive it as such. There is nothing on the face of these deeds showing them to be irregular or void. They are each, for a different portion pi the tract or quarter section of land, having known boundaries, according to the plan of the public surveys ; one being for the south half and the other for the north half of the quarter section, it required no survey to ascertain their respective figure, boundaries, or location.

II. But assuming these deeds to be irregular, and worthless, the court erred in refusing to receive them in evidence, in connection with proof of possession in order to establish a defence under the statutes of limitation.

The first section of the act of limitations of Arkansas bars the entry of the owner after ten year's. And the thirty-fifth section enacts that •“ all actions against the purchaser, his heirs, or assigns, for the recovery of lands sold by any collector of .the revenue for the non-payment of taxes, and for lands sold at -judicial sales,'shall be brought within five vears after the date of such sales, and not after.”

Statutes of limitation are founded on sound policy. They are statutes of repose, and should not be evaded by a forced construction. The possession which is protected, by them must be adverse and hostile to that of the true owner. It is not neces-. sary that he who claims . their protection should have a good title, or any title but possession... A wrongful possession, obtained by a forcible ouster of the lawful owner, will amount to a disseisin, and the statute will protect the disseizor. One who'enters upon a vacant possession, claiming for himself upon any pretence or color of -title, is ■ equally protected with the forcible disseizor.. Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence, color of title, even under a void and. worthless deed, has always been received as evidence that the person in possession claims for himself, and of course, adversely to all the world. A- person in possession of land, clearing, improving, and building on it, and receiving the profits to his own use, under a claim of title, is not bound to show a forcible ouster of the true- owner in order to evade the presumption that his possession is not hostile or adverse to him. Color of title is received in evidence for the purpose of showing the possession to be adverse; and it is difficult to apprehend, why evidence offered and competent to prove that fact, should be rejected till the fact is otherwise proven.

With regard to the five years limitation, we need not inquire whether the legislature intended that the action should be barred, where the purchaser at the tax-sale was not in possession. In this case, possession for more than five years by the purchaser from the collector and those claiming under him, was proved. In order to entitle the defendant to set up the bar of this statute,. after five years adverse possession, he had' only to show that he and those under whom he claimed, held under a deed from a collector bf the revenue, of lands sold for the non-payment of taxes. He was not bound to show that all the requisitions of the law had been complied with in order to make the deed a valid and indefeasible conveyance of the title. If the court should require such proof, beforé a defendant could have , the benefit of this law, it would require him to show that he had no need of the protection of the statute, before he could be entitled to it. Such a -construction would annul the act altogether, which was evidently intended to save • the defendant from the difficulty, after such a-length of time, of showing the validity of his tax-title. The case’ of Moore v. Brown, 11 How. 424, had reference to a deed void on its face, and the consequence of this fact, under the peculiar statutes of Illinois; it furnishes no authority for the decision of the Court below in the present case.

The judgment of the Circuit Court is therefore reversed, and a venire de novo ordered.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Cotirt of the United States for the Eastern District of Arkansas, and was argued by counsel. On consideration whereof, it, is; now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit. Court, with directions to award a venire facias de novo, and to proceed therewith in -conformity to the opinion of this court.


author: Mr. Justice DANIEL

text:
    The United States, Plaintiffs in error, v. Andrew Hodge, Jr. and Levi Pierce.
    In a suit upon a postmaster’s bond, when treasury transcripts are offered in evidence, ic is not necessary that they should contain the statements of credits claimed by , the postmaster, and disallowed, in'whole or in part, by the officers of tile government.
    Nor is it a reasoit. for rejecting the transcripts as evidence, that the items charged in the accounts, as balances of quarterly returns, did not purport, on the face of said accounts, to be balances, acknowledged by the postmaster, nor were supported by proper vouchers; but merely purported to be the balances of said quarterly returns, as audited find adjusted by the officers of the government. The objection applied, if at all, to the accuracy of the accounts, and not to their admission as evidence.
    The basis of an action against a postmaster is his bond and its breaches;. and not ■ the transcripts nor the quarterly returns^ which are made' evidence by the statute.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

      It was the same case which was twice previously before the court, as reported in 3 How. 534, and 6 How. 279.
    The facts and points of law are set forth in the opinion of the court.
    It was argued by Mr. Crittenden, (Attorney-General,) for the plaintiffs in error, and Mr. Johnson and Mr. May, for the defendants, in error.
    The arguments of the counsel were so connected with an examination of, and reference to, the accounts, which were very voluminous, that it would be difficult to present an abstract of them.
   Mr. Justice DANIEL

delivered the opinion of the court..

This case comes before us upon a writ of error, to the Circuit Court of the United States for the Eastern District of Louisiana.

The plaintiffs in error instituted in the Circuit Court an action at law against the defendants, to recover the sum of twenty-five thousand dollars, the penalty of a bond executed 'by those defendants with W. H. Ker, and by which the obligors bound themselves jointly and severally for the faithful performance by Ker,. of the duties of postmaster at New Orleans. The amount claimed by the United States, upon the statement of the account of the postmaster, at the Treasury Department, was, on. the 18th of August, 1839, $70,126.72, nearly three times the penalty of the bond.

.This cause was first tried in the Circuit Court in February, 1843, when, under a charge from the judge, the-jury found a verdict for the defendants. A writ of error was sued out to the judgment of the court, but was afterwards dismissed here for the irregularity that it was signed by the clerk of the court- and not by the judge. Vide 3 How. 534. Upon a new writ of error, the case was brought up to this court, was heard upon exceptions to the rulings of the judge, when the decision of the Circuit Court was reversed, and the cause remanded for trial upon a venire facias de novo. 6 How. 279.

In pursuance of the mandate of this court, the cause coming on to be finally heard in the Circuit Court-on the 8th of. May, 1851, the judge refused to allow any of the statements of the accounts with the postmaster or any of the transcripts from the Post-Office Department, relating to the accounts of the postmaster, or any of the monthly returns of that officer which were offered in evidence by the'plaintiffs to be read to the jury, but excluded the whole of them, whereupon the jury found á verdict for the defendants. The case is now before' us upon exceptions to. the rulings of the judge, and which exceptions are as follows :

“Be it remembered, that on the trial of this case, the attorney of the United States, after having read in evidence the bond sued on, offered in evidence the following certified transcripts of statement of accounts, copies of quarterly returns of W. H. Ker, late postmaster, and of the other papers pertaining to the account of the said postmaster, hereto annexed; to the introduction of which, as evidence, the defendants, by their counsel, objected, and the court sustained the objection, and refused to allow the said transcripts, or any of them, to be read in evidence to the jury; to which opinion and decision of the court, in excluding said evidence, the attorney of the United States excepts and prays that this bill of exceptions may be signed, sealed, and made matter of record, which is done.accordingly.

“ Theo. H. Me Caleb, U. S. Judge.” [seal.]

By consent of the counsel of the United States, the court here states the grounds upon which it rejected the transcripts above mentioned as follows:

“ 1st.' That the said statement of accounts, between the United States and said W. H. Ker [were] as audited and adjusted only, and did not purport to contain the statement of credits claimed by him, and disallowed in whole or in part by the officers of the government. ■

“ 2d. That the items charged to the said W. H. Ker in said accounts, prior to the year' 1836, as' balances of quarterly returns, do not purport on the face of said accounts to be balances acknowledged by him, -nor are they supported by any proper vouchers, but merely purport to be the balances of said quarterly returns, as audited and adjusted by the officers of the government.

“ 3d. That the quarterly returns were riot the basis of the action, and under the law could not be admitted as evidence before the jury, except as vouchers to sustain the account, (which) having been rejected by. the court, the quarterly returns could not be given in evidence without it.

“ Theo. H. McCaleb, U. S. Judge.”

In order-to test the accuracy of the decision by which the competency and legal effect of the transcripts were passed upon by .the court, and by which they were ruled out at the trial, some feferertce will be proper to the statutes by which those, documents have been authorized and directed, and the mode of their application prescribéd in the prosecution of claims on behalf of the government; By the,8th section of the act of Congress for the réorganization of the Post-Office Department, passed on the 2d of July, 1836, (vide Stat. at Large, vol. 5, p. 81,) it is provided, “ that there shall be appointed by the President, with the advice and consent of the Senate, an Auditor of the Treasury for the Post-Office Department, whose duty it shall be to receive all accounts arising in said department, or relative thereto, to audit and settle the same, and to certify their balances to the Postmaster-General. He shall keep and preserve all accounts, with the vouchers, after settlement; he shall promptly report to the Postmaster-General all delinquencies of postmasters in paying over the proceeds of their offices, and shall close the accounts of the department quarterly, and transmit to the Secretary of the Treasury quarterly statements of the receipts and expenditures.”

By section 15th, of the same statute, (vol. 5, p. 82,) it is further provided, “ that copies of the quarterly returns of postmasters, and of any papers pertaining to the accounts in the office of the Auditor for the Post-Office Department,,certified by him under his seal of. office, shall-be admitted as evidence in the courts of the United States; and in every case of delinquency of any postmaster or contractor, in which suit may be brought, the said auditor shall forward to the Attorney of the United States, certified copies of all papers in his office tending to sustain the claim ; and in every such case a statement of the account, certified as aforesaid, shall be admitted as evidence ; and the court .trying the cause shall be thereupon authorized to give judgment and award execution, subject to the provisions of the 38th section of the act to reduce into one the several acts establishing the Post-Office Department, approved March 3d, 1825.” The 38th section of the act of 1825, here referred to, relates exclusively to the conditions on which the court may grant a continuance to defendants, beyond the return term, in suits against them. The 15th section of the act of 1836 goes on further to declare, “ that no claim for a credit shall be allowed upon the trial, but such as shall have been presented to the said auditor, and by him disallowed in whole or in part, unless it shall be proved to the satisfaction of the court that the defendant is at the time of the trial in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting to the said auditor by some unavoidable accident.”

In the case before us there were exhibited, on the trial below, two general accounts or transcripts from the auditor for the Post-Office Department with the postmaster Ker. By the former of these accounts, the balance against the postmaster was stated at $93,347.78 ; by the latter the balance was reduced to the sum of $70,126.96. The difference ih these amounts is explained by the facts, that at the time at which the first statement was made, the postmaster had failed to make Ms quarterly returns as required by law, from the 1st of July to the 15th of November, 1839, and in consequence of that failure had been charged, in_ pursuance.of the 32d section of the act of Congress of 1825,-with double the estimated amount of postages receivable during that interval. Subsequently to this, statement, the postmaster having rendered' his account for the interval .above mentioned, the actual amount due from him was charged against-him in lieu of the duplicated estimate of receipts, and the balance against him thereby reduced to, the sum of $70,126.96. The transcript of the statement thus corrected, was. certified to the Circuit Court on. the 1-lth of May, 1842, before the trial of the cause.

In addition to • these general transcripts, there were certified by the auditor,'and tendered in evidence by the United States, copies of the quarterly accounts or returns rendered by the. postmaster from the quarter ending on the 30th of September, 1836, before the execution of his official bond sued on, up to the period of his removal; and on each of these quarterly returns or accounts the corrections or .disallowances are noted. Proof is found in the record of notice to the postmaster of all these corrections in his returns, and the balances claimed on each of these returns, as corrected,-were, afterwards carried into the auditor’s general statements, of which transcripts were furnished and offered in evidence at the trial. It would seem difficult to discover a plausible reason for the exclusion by the judge at circuit of the transbripts offered in evidence, as incompetent or irrelevant to the issue before" him, and equally so to reconcile the reason assigned by his honor with the conclusion to which it has led .him. In the first place, the language of the act of Congress is ex- ?' ress and imperative, that the “ Auditor of the Treasury for the ’ost-Office Department shall receive all accounts arising in the. department relative thereto, and audit and settle the same, and certify their balances to the Postmaster-General.” Vide sect. 8th of the act of 1836. And again, section 15th of the same act: “ In every case of delinquency of any postmaster or-' contractor in which suit may be brought, the said auditor shall'1 forward to the Attorney of the United. States, certined copies of all papers in his office tending to sustain the claim, and in every such case, a statement of the account, certified as aforesaid, shall be admitted as evidence, and the court trying the'"cause shall be there- ■ upon authorized to give judgment and award execution,” &c. The competency, of a statement by the auditor of all or any accounts with postmasters and contractors in suits against them, . cannot, then, be questioned; the accuracy of such statements as to detail, is a wholly different matter, and is to be questioned or contested in the mode prescribed by other. provisions of the statute. The only qualification ever made of the principle above laid down, if indeed it can be properly considered a qualification, is to be found in the decisions of this court in the cases of the United States v. Buford, 3 Peters, 29, and of the United States v. Jones, 8 Peters, 375, in which it has been ruled, that, transcripts from the treasury should not amount to proof of facts not coming within the regular relation existing between the department and persons with respect to whom such facts may have transpired; but this exception or qualification cannot, apply to transactions falling strictly within the relation subsisting between the government and its agents, or rather it goes to affirm the operation of the statute in reference to such transactions. The utmost latitude which could be given to the decisions above mentioned, could not extend them to the- entire character of the transcripts certified from the department as evidence, but must limit their effect to any portions or items of those transcripts which should be irregular, and not within the language or import of the statute, nor within the regular operatipns of the department.

The first reason'assigned by the judge below for excluding the entire transcripts is, that they were presented as accounts between the United States and the postmaster Ker, as audited and adjusted only, and did not purport to contain the statement of credits claimed by him and disallowed in whole or in part by the officers of government. The obvious answer to this objection is, that the omission complained of did not fender those documents any the less transcripts certified by the officer, nor destroy their competency as evidence under the statute. The objection, if it comprise either force or plausibility, is one strictly applicable to the completeness or'Sufficiency óf the documents offered, and not to their competency or legality. An objection to the transcripts from the department, founded on the facts that they are only a statement and adjustment of the accounts between the United States and the; postmaster, without containing the credits claimed and disallowed,is precisely an objection based upon the conformity of those documents with the law; for, by the 8th section of the act of 1836, the auditor is directed to receive all accounts arising in the department or relative thereto, to audit and settle the same, and to certify the balances therein to the Postmaster-General — and we may seek in vain for any provision in the statute which prescribes a particular form of stating the accounts or directing a list of the items.not admitted by the department, but rejected as illegal, to be made parts of that general account, or transcript. A different proceeding would seem to have been the contemplation of the legislature, if, we can gather its intention from the mode pointed out for preferring and establishing credits, which, if denied and rejected by the government, it would seem strange to require should, by the act of that government which denied their existence, be held forth as a part of its own view of. the transaction. But, as already observed, the reason assigned by the judge of the Circuit Court for ruling out the transcripts is one which could apply, in any view, only to the sufficiency or strength-of the proof, and not to the competency or relevancy thereof. That reason too is directly in conflict with the 15th section of the act of 1836, which explicitly declares, irrespective of their force oí efficiency, “ that .copies of the quarterly returns of postmasters, and of any papers pertaining to the accounts in the office of the auditor of the Post-Office Department* certified by,him under the seal of his office, shall be admitted as evidence in the courts of the United States; and in every case of delinquency by any post-' master or contractor, in which' suits may be brought, the said auditor shall forward to the Attorney of the United States, certified copies of all papers in his office, tending to sustain the blajm, and in every such case a statement of the account, certified as aforesaid, shall be admitted as evidence.” Under this ample provision of the statute not only the statements of accounts, but certified copies of every paper in the department pertaining to such- accounts, are made competent evidence in the courts of the United States.

It will 'be observed, in this'case, that in the certified transcripts from' the department, every credit allowed to the. postmaster. upon the settlement of his account is given, and appears upon the face of the transcripts, so that the defendants have received the full benefit of all such credits;' and indeed the opinion of. the judge below is not founded on the withholding of any of these credits from the postmaster, but it rests ' exclusively upon the fact of the absence from the face of the transcripts or 'general accounts of the alleged credits, whose correctness, or legal existence even, was denied by the government, but which the defendant was still at liberty to 'assert* in the mode. prescribed by the statute. What obligation there could be upon the government to embody and to present to the .court claims whose existence it repudiated and denied, we are unable to perceive. The language of the statute contains no such requisition, and none such appears to fall within the meaning or objects^.of the law. Upon each of the quarterly returns of the postmaster the corrections made at the department are noted in a separate column, annexed thereto for the sole purpose of inserting those corrections; the balances, as corrected,, were thence transferred to the general áccounts or transcripts, and the postmaster was informed of the corrections made,, with the view to his sustaining the rejected items by proofs, if in his power to do so. The quarterly returns themselves remaining as to all the items they contained, precisely as made by the postmaster himself.

The question of the admissibility and competency of transcripts like, those ruled out by the judge in the court below, has, in several instances received the examination of this court, and their competency and legality as evidence, in cases like the present, have been established upon the fullest consideration. In the case of Hoyt v. The United States, 10 Howard, 109, this question was raised, and in the investigation of it by this court, the cases of The United States v. Buford, 3 Peters, 29, The United States v. Jones, 8 Peters, 375, and The United States v. Eckford’s Executors, 1 Howard, 250, were all examined and compared. It is true that the cases above mentioned did not arise upon the statute regulating the Post-Offióe Department, but they involved the construction of the act of March 3d, 17-97, the import of which, and indeed the language thereof, mutatis mutandis, are identical with those of the act of 1836, regulating the Post-Office Department. Vide Stat. at Large, 512. In the case of Hoyt v. The United States, the law is thus expounded by this court: “ The counsel for the plaintiffs, (The United States,) in the court below, produced on the trial four treasury transcripts, containing a statement of the accounts of the plaintiff in error with the government, for the whole period of his term, and which resulted in the balance above stated. These transcripts were objected to as not competent evidence against the defendant of the balance therein found due, within the meaning of the act of Congress providing for this species of proof. The second section of the act- provides that in every case of delinquency where a suit has been brought, a transcript from the books and proceedings of the treasury, certified by the register and authenticated under the seal of the department, shall be admitted as evidence, upon which the court is authorized to give judgment.” This court further proceeds: “ In the case before us the several items of account in the transcripts arise out of the official transactions of the defendant as collector, with the Treasury Department, and were founded upon his quarterly returns and other accounts rendered in pursuance of law and the instructions of the treasury. They were substantial copies of these quarterly returns revised and corrected by the accounting officer, as they were received, and with copies of which the defendant had been furnished, in the usual course of the department; they present a mutual account of debit and credit arising out of the official dealings with the government in the collection of the revenue. We can hardly conceive of a case, therefore, coming more directly within the act of Congress as expounded by the cases referred to.” The court then deduces the following conclusions : “ As a general rule, therefore, every item of the account that can be the subject of litigation at the trial on the production of a transcript, must have been a matter of dispute at the Treasury Department, and of course presenting nothing new or unexpected to the parties. The court is of .opinion, therefore, that the several treasury transcripts offered in evidence were properly admitted.” We think, therefore, that the óbjection of the judge of the court below to the transcript offered in evidence, viz., that it did not contain on its face, as credits, items which were never admitted as credits, bufwere denied and rejected as such, was justified neither by the statute, nor by reason, nor custom in the statement of accounts.

The second cause assigned by "the .judge below for his rejection of the transcripts from the jury, is likewise one which applies, if' at all, to the accuracy of the items in the account, and not to the competency of the entire transcripts as documents certified and attested in the mode prescribed by the act of Congress. The objection on the part of the judge, if it can be appiehended, seems to be this: That the quarterly returns of the postmaster entering into, and forming parts of the general transcripts, having been corrected at the department, the balances produced by such corrections cannot be regarded as the acknowledged amounts due by the postmaster, but, on the contrary, are the balances stated as due on said quarterly returns as audited and adjusted by the officers of the government. As we have already said, this objection applies entirely to the correctness of the items contained in the general account as stated, and cannot change the character of the transcripts as certified statements of 'the accounts audited and adjusted at the department, and as directed tó be certified by the provisions of the statute. Moreover, these quarterly returns, which, so far as they go, are certainly admissions of the postmaster, are in nowise changed or affected, except by the disallowance of particular items, and by that very disallowance the officer is put in the position, andnotified to sustain, if he can, his claims by legal proof.' If he fail to do this, it can certainly furnish no reason why every other item of indebtment, admitted to be correct by both parties, should be withheld. We can perceive, then, no force in the second cause assigned by the judge below for the rejection of the transcripts.

The third cause assigned by the judge for rejecting the evidence tendered by the plaintiffs, has less of plausibility to sustain it than either which precedes it; and may be disposed of in a few words. This last cause begins with the affirmation, t*hat the quarterly returns were not the basis of the action; next, it asserts that these returns could not,..under the law, be admitted as evidence to the jury, except as vouchers to sustain the account, and then the conclusion attempted from these positions is, that the account, being rejected by the court, the quarterly returns could not be given in evidence without' it. A somewhat curious example of assumption is given in this argument of the court, arid of deduction in the conclusion as drawn therefrom. •In the first place, it may be observed that neither the transcripts nor the quarterly returns, certified from the department, constituted, properly speaking, the basis of the, action against the defendants — that basis is found in the official bond of the postmaster and his sureties, and in the acts or delinquencies of the officer. The proof of those delinquencies consisted in part as ordered by the statute, of the general transcripts, and of the quarterly returns certified and attested as that statute directed ; ■ they were both made evidence, and ought to have been so received, to avail as far as.they regularly and properly might upon the issue made between the government and the defenddants. They both came within the literal descriptions in the statute of the “ copies of quarterly returns of postmasters and of any papers pertaining to the accounts in the office of the Auditor of the Post-Office Department, which, when certified by him under his seal of office, shall be admitted in evidence in the courts of the- United States.” But the trenchant argument of the court below is simply this : I have cut off a portion of this statutory evidence, by the former part of my opinion, the residue shall be subjected to a like operation. We think that the decision of the Circuit Court, as. a whole, and in the detail, as set forth by. that court, is erroneous, and should be, as the same is hereby, reversed; and we do remand this cause to the Circuit Court to be again tried subject to-the'principles laid down in this opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof,, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and to proceed therewith in conformity to the opinion of this court.