author: Mr. Justice McLEAN

text:
    The United States v. Gabriel F. Irving, James E. Dekay, Francis R. Tillon, and Charles P. Clinch, surviving executors of the last will and testament of Henry Eckford, Deceased.
    ■When a collector is continued in office-for more than one term, but gives different sureties; the' liability of the sureties is to he estimated jus't as if a new person had been appoihted to fill the second term.
    When the accounts of a collector are returned to the Treasury quarterly, and the date of the commencement and expiration of his term of officé is on some intermediate day between the beginning and end' of the quarter, a re-statement -and Treasury transcript of his account up to the end of his term-is legal evidence in a suit against'the sureties.
    Such a re-statemént does not falsify the' general accounts, hut arranges the items of debits and credits so as to exhibit the transactions of'the collector during ' the four years.for which the sureties were responsible.
    The amount charged to the collector at the commencement of his second term is only •prima fade, evidence against the sureties.
    But payments into the Treasury of moneys accruing and received in the second term, should not be applied .to the extinguishment of. a, balance apparently due at the end of the first term. Payments made in, the subsequent term, of moneys received, on duty bonds,: or otherwise, which remained charged to , the collector as of the preceding official term, should .be so applied..
    The-settlement of quarterly accounts at the Treasury, running on ih a continued series, is not conclusive.. The officers of. th.e Treasury cannot, by any exercise of their, discretion, enlarge- or'restrict the obligation-of the collector’s bond. Much-less'can they, .by the mere fact of keeping ah account currant in which debits and credits' are entered as they occur; and without any express appropriation of payments; affect the. rights of sureties.

      This case came up from the Circuit Court for the southern district of New York, under a certificate of division in opinion between the judges of that court upon the two folio wing.points : •
    1. Whether the transcript from the books and proceedings of the Treasury, given in evidence.on the part of the United States . to show the indebtedness of Swartwout on the 28th day of March, 1834, on which day the second term of office of said Swartwout expired,' was, in this case, competent and legal evidence for that-purpose..
    2. Whether the payments made by said Samuel Swartwout subsequently to the said 28th day of March, 1834, should be applied to the discharge of his . indebtedness existing on said 28th day of March, 1834, hr accruing during his second term of office, or whether such payments should be applied to the discharge of his indebtedness accruing after that time.
    The facts in the, case were as follows:
    Swartwout was appointed collector at the port of New York on the 1st day of May, 1829; but his proceedings during this,- his first term, have nothing to do- with the present case.,
    On the 29th of March, 1830,. his second term commenced, and he was appointed-for. four years.
    On. the 22d of June, 1830, he gave a bond for the faithful performance of his duties, in the mode prescribed By law, with several sureties, one of whom was Henry. Eckfordj whose executors are parties to this suit. The penalty of the bond was #150,000, and -the condition ran, thus: “ Now, therefore, if .the said Samuel Swartwout hath truly .and faithfully executed and discharged, and shall' continue truly and faithfully to execute and discharge, all the duties of the. said office, according to law, then the, above obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue.’’
    ■ Quarterly accounts were rendered to the Treasury Department, • - according to law; but- they continued to. be made out, as they had' been -during his temporary appointment, running from the 1st of January to the 31st of March, from the 1st of April to the •30th of Juñe, and so on. In these quarterly accounts were stated the yarious sums received by him on account of the government, and also the. payments which he had made on behalf of the United States, although it often happened' that the covering warrants from the Treasury, the final vouchers for such payments, were not received in time, to be returned with said quarterly accounts, in which case they were thro wn into the next quarter, when the proper credits were given;.
    Swartwout’s third tern of office, commenced on the 29th of March, 1834; and the bond which he gave contained a condition similar to- the .one which, has been recited, but Henry Eckford was not .one., of his. sureties. The time, therefore, covered by Eckford was from the 2Sth of March, 1830, to the 28th of March, 1834, inclusive of the latter day.
    In his accounts for 1834, Swartwout continued to make them ' up for the quarters of the year, as he had done, and his account for .the first quarter was brought up to, and ends on,, the 31st March. No account was filed by him' ending on the 28th of . March. ' The one ending on thé 31st shows- a large balance of “ cash on hand.”.
    In adjusting this, account, the auditor began with charging Swartwout with the balance as it stood against hihi in the preceding account; then charged him with, all the moneys: which he had. received in that quarter. Haying given him credit for various sums paid into the Treasury, and paid, to individuals under proper authority, Ihe strikes a balance in. favour of the United States, Which is stated.'to consist of bonds uncollected, not due, bonds in suit, general bonds for spirits, wines, &c., and cash on hand;
    In adjusting, the account for the ensuing quarter, ending on the 30th of June,; 1834, the auditor brought forward -the. entire balancé standing'against Swartwout in the .last account,.and' then proceeded to charge and credit him as before.'
    ■ In April', 1839, these accounts were- re-stated by order of- the first comptroller, so as to make first account end on the'28th of March, 1834, instead of the 31st.' The re-statement begins on the 28th of March, 1.830, and runs through the whole four years of Eckford’s suretiship, ending on the 28th of March, 1834, and show;s á.balance of,cash due to the United States, of $486,455 24 cents.. A certified copy of this paper is. the transcript. mentioned in the Certificate of division of opinion in the court below.
    Legar, attorney-general, on behalf of the United States.

      Lord and Silos Wright, for the defendants. .

      The points presented'by the counsel, were — for the plaintiffs:
    1. That this transcript is competent ¿nd legal evidence to show that Swartwout was, on the 28th. March, 1834; indebted tó the United States.
    2. That the payments made by Swartwout, subsequent to the. 28th March, 1834, should not be applied to discharge his debt incurred before, but to discharge that incurred after, that date.
    On the part of-the defendants the points'were as follows: •
    1. Preliminary references:
    . 1. The form of the collector’s bonds is prescribed by law:, ailtt expressly assumes the past as well as prospective accountability of the collector. Act 1799, 3 U. S. Laws, 237.
    2. The law obliged the collector, once in every, three months, and bftener if required, to transmit his accounts, for settlement, to the officers of the Treasury. Act 1799, sec. 21, 3 U. S. Laws, 157; Act 1820, May 15, sec. 2, 6 U. S. Laws, 521.
    The law also bound him, as a disbursing officer,-to the same duty. Act 1823, Jan. 31, sec. 2, 7 U. S. Laws, 113.
    . 3. The law required the officers of the Treásury Department to examine the accounts submitted, and to-state,, and certify the balances thereof. Act 1817; March 3, sec. 4,8, and 9, 6 U. S. Laws, 199; and also the references under the preceding proposition.
    4. The accounts rendered quarterly to the Treasury, there examined, corrected, and returned to the collector,'áre binding upon both parties as to all the items embraced in the accounts and included in thé adjustment at the Treasury.
    II. Thé. balances in the quarterly accounts are to bé taken as. cash fund's, or cash on hand; if. so, every, consideration, equitable as. well as legal, requires them to be treated as the primary fund for subsequent payments, and these payments to be, applied accordingly;
    -III. If the quarterly balances are presumed to be arrears, or defaulting balances, nevertheless the mutual rendering 'of acfcounts between the collector and the Treasury Department, to each other, was an appropriation of the payments to the charges, in the order of time in which they stand in those accounts.
    IV. The sureties in posterior bonds of collectors of the customs have nonequity to bé taken into view, even in respect to an appropriation of payments, by mere implication of law.

      . V. If the sureties on such posterior bonds should be deemed to have an equity against an application .of payments, made after the date of their bonds, and during the period covered by it, to an antecedent balance, such application might have the effect to discharge such sureties;, the United States cannot, for such a cause, without the. consent of the anterior sureties, recall such application, made by accounts rendered, adjusted, and settled, according to law and long usage, and binding as between the United-States and the collector.
    VI. The re-statement of the account from 1830 to 1834, made at the Treasury in 1,839, after the rendering and the settling, at the time of the quarterly accounts, was without authority of law, if it was to affect any previous appropriation of payments; if it was not, it was immaterial and irrelevant. It was in every view without authority of law.

      Legaré, for plaintiffs.
    1. Whether transcript is evidence.
    2. As to the application of payments.-
    1. The act of 3d March, 1797, 1 Story, 464, declares that a transcript of the account shall be evidence. It is objected that this is hot such, because the account is re-stated. But if an account has been once stated, why not state it again ? Accounting officers are not judges. Need not re-state, unless some error. Time does, not discharge sureties; United States v. Kirkpatrick, 9 Wheat. Government is not estopped if new evidence be discovered. 1 Domat, Public Law, title 6. An error may be corrected in a patent. Grant v. Raymond, 6 Peters, 241. Where a contract requires to be severed, court will sever it, as with rent. Co. Litt. 742, 215, A; Litt. sec. 244; 1 Roll’s Abr. Apportionment, D. So in partnership cases. 3 Bro. Ch. Cases, 4, 44.
    As to the second point.
    . If the opposite doctrine be correct, neither set of securities is responsible, because there is. no default in the second term, and. the first-is paid. 1 Mer. 529, 572. If the debtor does not apply the payment himself, the court will apply.it where the security is most precarious., 6 Cranch, 27. Civil law stated in 1 Poth. on Obligations, 338, ed. of 1826. The creditor may make the application. 4. Cranch, 317. A leading case is. in 7 Branch, 572, but Justice Story dissents from it in 5 Mason’s Rep. 82. Securities only liable for what was actually received'during-the term. 12 Wheat. 509. The responsibility must be severed. 1 Gilpin, 125,

      Lord, for defendants:
    Custom has been to .apply payments as to time,-unless something peculiar in the case. Bond of second sureties retrospective; law required it to be so.. Sureties must have lookéd to this, backward as well as forward. Quarterly settlements are required by law. Act of 1799, c. 128, s, 21; May, 1820, c. 625, s. 2; Jan. 1823,c, 138.
    Collector is obliged to retain money for Various purposes; for example, to pay debentures, &c. The quarterly accounts are settlements, and bind the parties. Act of March 3, 1817, makes it the duty of the government to settle them. Onus is on the government. 1 McLean’s Rep. 493; 9 Cranch, 230, 237. Presumption- is that the accounting officers knew what the collector ought to keep on hand, and allowed him to retain it, aided by his reappointment. . Suppose that it was a debt from Swartwout: has it been paid ? Rule is, that oldest debt is paid first, unless there be some equity. First, the debtor directs; if he does not, the creditor does; if neither does, the court makes the application. 6 Cranch, 9; 9 Wheat. 720; 4 Mason, 333. . In December, 1834, this application was made. Oldest debt most likely- to be lost, and policy of. government is. to throw balances on last securities. Debtor may make the application. 7 Cranch, 575; 9 Wheat. 720; 1 Mer. 604; 3 Sumn. 109 ; Gilpin, 125; 1 McLean, 493. The collector owed no debt until the government called for its money. Even if money had been borrowed from second surety apd paid to government, the payment would have been good. The transcript is not a paper according to layr, because the law meant a copy of what was done, not to make out. something new.

      Wright, on same side.
    Debtor has.a right to make the application. 2Vern. 606. If he does not, the. creditor may, but he must say before any contror versy. 5 Taunt. 596, Either party having declared their intention is bound by it, and cannot change it without the consent of the othér. 4 Cranch, 315. If .neither party make the application, courts will consr.lt the interests of creditor as well , as debtor, because they will apply .if to a debt not bearing interest or not secured, rather than .to one bearing interest or secured. ; In ¿.running account the oldest credits are applied to the oldest debts, and so on, in order of time. 9 Wheat. 720; 2 Strange, 1194; 9 Mod. 427; 4 Mason., 33; 2 Marsh. 319; 1 Mer. 572 — 611; 2 Barn. and Ald. 39; 3 Bingh. 71; 1 Wash. 128 ; 2 Brod. d Bingh. 7; 1 Stark. 122; 12 Wheat. 505; 1 Mason, 323; es, 239; Ambl. 55; 5 Mason, 82; 3 East, 484; 1 Bingh. 452; 2 Barn. and Cres. 265; 2 Maule and Selw. 18; 9 Cranch, 212; 1 Gilpin, 125, 106; Theobald, 221; 1 Law Library, 131, The po wer of the creditor and debtor over payments is the same where there are sureties as where there are none. 4 Mason, 333; 3 Bingh. 71; 9 Cranch, 212. The case in 1 Gilpin, 125, is not justified by either the case in Cranch or the case in Mason. In 1 McLean, 493, the officer was not a disbursing officer, and the bond was not retrospective. Case in 5 Peters, 373, not applicable.
    Payments in this case were in fact and in law applied to ex-tinguishment of former balances. Law required accounts to be settled quarterly. Every quarter Swartwout made the application, and it must bind. him. So-the government officers, also, by bringing down fresh balances. 3 East, 484; 9 Peters, 12; 1 Mason, 323; 14 East, 239; 8 Wend. 403.
    Suppose anew person had been appointed who had debited; himself with the balance, and the government had assented to' it; would not this have discharged principal and surety ? and how is it changed if the same man be reappointed ?

      Legaré, for plaintiffs, in reply.
    The question is nofnow, whether a balance can be. shown, but merely whether the evidence is legal; a cash balance* is prima facie evidence of a debt. Every term of office is a separate responsibility, as.to principal and sureties. No matter how the accounts are kept; the law of 1820 cuts through and severs them.- Act of 1840, commonly called'the Sub-treasury Act, declares the appropriation of public money a felony, and such an appropriation to pay an old debt is the basis of this defence.' In 9 Wheat, the bond was given during an executive appointment. The sureties must see that thqir principals settle every four years. Swartwout. was a bailiff or agent, not a debtor. 15 Peters, 432. See 1 Jac. and Walk. 247. An agent who keeps the money in bank is presumed to be using it for his own benefit. 11 Peters, 61. A debtor paying a debt out of his own money has a right ■ to apply it, but not paying it out of another, man’s money. He held the money of the government as a mere bailiff, and had no right to do any thing with it but hand it over.
   Mr. Justice McLEAN

delivered the opinion of the court.

This action was commenced in the Circuit Court for the southern district of New York, against the sureties of Swartwout, late collector of the customs at that city.

Swartwout was appointed collector by the President, the 1st of May, 1829; and continued to serve under such appointment until.the 28th of March ensuing. ■ On the 29th March, 1830, his nomination was sanctioned by the Senate, and he continued to serve in the office of collector four years. On'the 29,th March; 1834, he wa§ again appointed .by the President arid Senate, for the term of four years.

Under each of the above appointments he gave bond and security, which, after reciting his appointment of collector, &c. provided : “ Now, therefore, if the said Samuel Swartwout, hath • truly and faithfully executed and discharged, and shall continue truly and faithfully to discharge; all the duties of the said office according to law, then,” &c.

The borid on which this suit was brought, is dated the 22d June, 1830.

A transcript, of the .accounts of Swartwout from the commencement to the termination of his service as collector, was giveri in evidence, and also a transcript which purports to state the Tesponsibilities arising under the second term of his service.

At the commencement of his secpnd term, a large balarice was charged against him, arising under the previous term; and at the commencement of the third term, a balance was charged,.’as arising under the second term.

In the course of the trial the two following points were raised, on which the judges were opposed - in opinion, and the questions were certified to this court.

1. Whether the said transcript from the books and proceedings of trie Treasury, given in evidence, on the part of the United States, to show the indebtment of said Swartwout, on' the 28th of. March, 1834, on which day the second term of office of said Swartwout expired, was in this case competent and legal evidence for that purpose;” ■

“ 2. • Whether the payments made.by said Samuel Swartwout, subsequently to the said 28th day of March, 1834, should be applied to' the discharge of his indebtment existing on the said 28th day of March, 1834, or accruing, during his said second term of office, nr whether such payments should be applied to the dis* . charge of his indebtment accruing- after that time.”

By the act of the 2d of March, 1799, collectors of the customs are required, <c once in every three months, or oftener if directed, to transmit their accounts for settlement, to the officer, or-officers whose duty it shall be to make such settlement.”

From the transcripts in this case, and the deposition of the late comptroller, it appears that until after 1838, the accounts of collectors of the customs were kept at the Treasury-in one continued series of debits and credits, without regard to the terms of the appointments: or the different sureties involved.

By-the act of May 15th, 1820, the term of appointment of collectors.óf the customs and other officers named, was limited to four years. Prior to that act, such appointments were made without any limitation - as to time, except. the pleasure of the President.

The 2d section of the act. of 3d March,-1797, .provides, that, “ in every case of delinquency, where suit has been, or. shall be, instituted, 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,” &c. By the 11th section of the act of the 3d March, 1817, the; auditors - of the-War and NaVy Departments were authorized to certify accounts the same as the register.

' Before the points certified are examined, we will consider the principles involved in the case.

Under the act of 1820, collectors can only be -appointed for four years. At the end of this term the office becomes vacant, and must be filled by a new appointment. And' each collector is required to give bond and security on entering upon the duties of his appointment; in such sum as shall be designated.

That the collector is responsible for all moneys received by him and not accounted for, without reference to the official, terms he may have served, or to any bonds he may have executed, is undoubted. But this is- not the case with his sureties. They are responsible only, for the faithful performance of his duties, for the term of his appointment. The condition of the bond is, that, he hath performed his duties faithfully, and that he shall continue to perform them. But this condition does not extend to his delinquencies under any other appointment.

The bond in question is dated the 22d of June, 1830, and, relates to the 29th of March preceding, at which time the terra of the collector commenced; and its obligation extends to the. 29th of March, 1834. That the, sureties are not bound beyond this period, is too clear for controversy. As regards their liability, it is the same as if Swartwout had served only the term covered by their bond. For the faithful performance of his duties under the . executive appointment, which preceded the above term, Swartwout gave bond and. sécurity; and also, under the new appointment for four years, which he served from the 29th March, 1834. So far as the sureties are concerned, these terms arq as separate and distinct as if a different individual had filled each, one of them.

The extent of the obligation of the sureties being stated, we are brought to the inquiry, “ whether the transcript, given in evidence, on the part of the United States to show the indebtment of Swartwout, on the 28th of March, 1834, was legal evidence.”

. The transcript is certified in the form required by the act.of Congress. In the argument no objection was stated, as. to the ‘ mode of its authentication. But the re-statement of the account' by the .Treasury officers, showing the liabilities incurred by the collector during the term for which the defendants are bound as sureties, is objected to.

The collector is also a disbursing officer. He is charged with thé bonds taken.for duties, and is credited for stuns paid into the Treasury, and also , for drawbacks arid other disbursements incident to his office,- or which have been made under the order of the Treasury Department. But from the continuous mode of keeping his accounts, without regard to the terms he' may have served, the defalcation within any one term does not appear.

. At the commencement of each term an amount is charged against the collector, but it may be composed of'bonds in suit, not due, and deposited specially, as is found by the items'first charged in the general transcript, amounting to more than .eleven millions of dollars. The balance, charged, therefore, at- the commencement of any quarter or term, does not show that the collector is in default. . He may, indeed, stand charged with money actually paid into the Treasury by him, but forwhich.he.has received no credit, as what is called a covering warrant has not' been issued. Until this shall be done the credit cannot, by the usage of-.the department, be given.

To meet the necessary disbursements, a sufficient sum of money should always be under the control .of the collector. A11*! it is understood to .be the usage of the collector, under the sanction of the department, to retain such sum.

■From this, it appears that the general transcript affords no sufficient data on which to charge the sureties for any term of office, where, as in the present case, the same- person has served as collector several terms.

It is contended that the duties of the Treasury officers charged with.the settlement of .these accounts are in their nature, judicial ;= and that when an'accouht' is once settled it is conclusive on the government, and can only be opened for .correction by a suit in . court. Thát in' the .present case, as credits were given in the account current, which more .than,paid-the moneys, received .within the .four years .under examination,.the sureties must stand discharged of all liability. And, that although these payments were in part made from moneys received, after, th'e expiration of the above term, the .credit must stand as entered.

If this be a sound argument, by the mode of keeping these as counts-in the Treasury Department, all 'sureties of, collectors, except those for th.e last term, are discharged.. And it is supposed that this construction would impose no- hardship or injustice on the last securities; that, as the bond binds them for the .'past as well as the future conduct of the collector, they must inquire what amount is charged against him at the commencement of the term for which they are bound-.

Now the retrospective obligation Of the bond is as much limited by the term of the new appointment as th.e prospective. .And in this view'it would be as logical and' just to hold that the sureties are'liable for defalcations after the expiration of the term as for those which occurred before its commencement. There is no such condition in the instrument. It recites-the new appointment, • and, by consequence, limits the obligation to the term of office fixed by law.

The rulé as to the appropriation of payments by debtor or-creditor in' the ordinary transactions of business, is .earnestly relied on as applicable to the present case. And all the. leading authorities on this, subject- are referred to. In the case of Devaynes v. Noble, &c., 1 Mer. 606, the doctrine which governs the application of. payments, was elaborately considered. But ..the applicability of this doctr'ihe is not admitted. We think the rule established'by'this court in- the case of the United States v. January and Patterson, 7 Branch, 572, is the true one. In. that case the court.say: “ The debtor has the option, if he think fit to exercise it, and may direct the application of any-particular payment at' the time of making it. If he neglects to make' the application,-' the.creditor may make it; if he also neglects to apply the payment, the law will'-make the application.” . But the court add, “A majority of the court is of opinion -.that the rale adopted in ordinary cases is not applicable to .a case where different sureties under distinct obligations are interested.”

The Treasury officers are the agents, of the law. It regulates their .duties, as it does the duties'and. rights of the collector and ■ his sureties. The officers' of the Treasury .cannot, by any exercise ' of their discretion, enlarge or restrict the obligation of the collect- or’s bond. Much less can they, by the mete, fact of keeping an account current, in-which debits and credits are entered as they occur; and without any express appropriation o'f payments, affect ' the rights of sureties. The collector is a mere agent or trustee of the government. He holds the .money he receives in trust, and inbound to pay it over to. the government as the law requires.^ And in' theffaithful performance of this trust the sureties have a direct-interest,-arid their.rights cannot be disregarded.- It is true, as argued, if the collector shall misapply the public funds, his sureties'axe responsible;. But that is not the question under com sideration; The collector-. does .riot misapply the funds in his hands; but pays them .over to- the government, without any special direction as to their' application, "Can the Treasury officers say, under such circumstances, that the funds currently received . and paid over shall be appropriated in discharge of a defalcation which occurred long before the sureties were bound for the col- - léctor, and by such appropriation.hold the sureties' liable for thfe amount? The statement of the case is the best refutation of the argument. It is' so unjust to' the sureties, and so directly in conflict with the law and its policy, that it requires but little consideration.

If the collector be in default for a preceding term, it is the duty of the Treasury Department to require payment from him and his sureties for that term. ' To pay such defalcation out of accruing receipts during' a subsequent term, even with the assent of the collector, would be a fraud upon the sureties for such term. The money in the hands of the collector is not his money. Without ' a violation of his duty, he cannot appropriate it as such. He ' pays it over in the performance of his duty — the duty which the sureties have undertaken that he shall faithfully perform. And-shall the sureties not be exonerated? The collector has done all; that they stipulated hé should do. How, then, can they be made responsible ? It is-contended that their responsibility arises, not' from the default of the'collector, but from the'appropriation of his payments by the Treasury. This, at least, is the fair result of the • doctrine' advanced. For, if such appropriation is properly made'by the Treasury, in payment'of a defalcation of the collector before the commencement of the current term, it must fol- • low that the sureties.for such term aré responsible for the amount thus paid.

The government must show the amount of the defalcation ■ of the collector during the term for which the defendants weresureties, to' charge them; and this is not done on the face- of the general transcript.' It is necessary, therefore, to have a re-statement of the account for'this purpose: This re-statement does not.falsify the general account, but arranges the items of debits and credits so as to exhibit the transactions of the collector during the four ' years in question. Whether this be done-by depositions, or in the form of a transcript, may not be material.

We think that the transcript or re-statement'of the account, as' .' explained by the depositions, was competent evidence to the jury. This statement, as appears from' the deposition of Tarbutt, is defective in not giving all the credits to which the collector was .entitled; but as it relates to.the matter in controversy, it is.evidence'. The jury will determine what effect- it shall have.

The amount charged to the collector, at the commencement of the term, is only prima facie evidence against the sureties. If they can- show by circumstances or' otherwise, that the balance charged in whole or in part had' been misapplied-'by the collector .prior to the new appointment, they are. not liable for the. sum so misapplied. If the sum charged consists of duty- bonds, the defendants may Show that the bonds were never paid. These remarks apply'to the sureties under every new appointment of the collector, and to the- balance charged agaiiist him.

Oh the 29th of March, 1834, a new official term of Swartwout commenced, and new securities were given. On .that day a large apparent balancé was due tothe go’/erhment byhim. Now the inquiry should be, of what did that balance consist? Did it arise from a misapplication of .the public money during the preceding term? If so, the sureties of the preceding term are liable ■for the amount thus misapplied. But if there was no misapplication of the public money by the collector, and he paid over to .the government,, or to its order, all' the moneys he received .-during the official term for which the defendants were his sureties, however such payments may have been appropriated by the • Treasury, the sureties are discharged.

In answer to the-question, whether the payments made by the collector, subsequently to the 28th of March, 1834,.should be appropriated in discharge of his indebtment on that day,” we- say, that so far as such payments were made of moneys accruing and received in the subsequent.term, they should not be so /applied. But so -far as payments were made in the subsequent term of moneys'received On duty bonds or otherwise, which remained charged to-the collector, as of the preceding official term, such payments should be appropriated in discharge of the indebtment of the collector for that term. The sureties are only responsible for a misapplication of the public money during the four years-preceding the 29th of March, 1834. And of course the extent of this responsibility must he shown by the government. As before remarked, the' Court consider the. official terms as distinct • and separate,- in regard to the sureties, as if different persons," had served in the three terms specified; that the legal responsibilities of the sureties are not and cannot be affected by any action of the Treasury Department. If liable, the sureties are made so by their contract; and the government, being a party to that contract, cannot, without the consent of the defendants, change- its' legal or equitable effect.'

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit' Court of the United States for the Southern district of New York, and on the points and questions on which the judges of the said Circuit- Court were. opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued 'by counsel. On consideration whereof, it is the opinion of thisc Court,

1st, That" the transcript from the books arid proceedings of'the-Treasury, given in evidence on the part .of the United States, to show the. indebtedness of Samuel Swartwout on the 28th day of March, .-1S34, on which day the second term of office of said Swartwout expired, was,-in this case, competent and legal evidence.

2d-, That the payments made by said Samuel Swartwout subsequently to .the said 28th day of. March, 1834, should be appropriatéd iri discharge of his indebtedness on that day, so far as said payments were made, in the subsequent term, of moneys received on duty .bonds or otherwise, -which remained charged to the collector as of the preceding.official term; but not where such payments were-made of moneys accruing and received^ in the subsequent term.

: Whereupon it is now here ordered and adjudged by this Court, that ft. be so certified to the said Circuit Court. -


source: Caselaw Access Project

author: Mr. Chief Justice TANEY Mr. Justice CATRON

license: Public Domain

text:
    William Nelson, a petitioner in bankruptcy, v. Daniel Carland, an opposing creditor.
    Upon questions adjourned from the District to the Circuit Court under the “Act to establish a uniform system of bankruptcy throughout the United States,” the district judge cannot sit' as a member of the Circuit Court, and, consequently, the points adjourned cannot be brought before this court by a certificate of division.
    Nor Will an appeal or writ of error lie from the decision'of the Circuit Court; and it is conclusive upon the district judge.
    • The case came up on a certificate of division in opinion between the judges of the Circuit Court of the United States for ’'the. district of Kentucky. The facts are set forth in the opinion of the court.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

In the case of William Nelson, petitioner in bankruptcy in the 'Kentucky district, against Daniel Garland, an opposing creditor, several points were adjourned by the District to' the Circuit Court. Upon the hearing in the last-mentioned court, the district judge, as well as the justice of the Supreme Court, sat in the case; and being opposed in opinion upon the questions adjourned, they were certified to this court upon the motion of the counsel, for the petitioner.

The first question that presents itself upon this .certificate, is, whether the Supreme Court have jurisdiction in' the- matter in this form of proceeding.' And after examining-the printed argument filed by the counsel for the petitioner, and carefully, considering the subject, the court are of opinion that the district judge cannot sit as a member of the Circuit Court, upon, questions adjourned to that court, under the “ Act to establish a uniform system of bankruptcy throughout the United States;” and that, consequently, the points adjourned cannot be brought before this court by a "certificate of division. Nor will an appeal or writ of error lie from the decision of the Circuit Court; and it is-conclusive upon the district judge.

In delivering the opinion of the court, it is, however, proper for me'to say, that I dissent from that part of it which excludes the district judge from sitting as a member of the Circuit Court in. a case of this description. Yet I concur in the judgment dismissing these-proceedings; being of opinion that the act of Congress .of-1802, authorizing the • certificate of division where the judges of the Circuit. Court are opposed in opinion, does not apply to the peculiar and summary jurisdiction directed to be exercised .in cases of bankruptcy.

The proceedings must therefore be dismissed for. want óf juris- ■ diction.

Mr. Justice CATRON

dissented.

On a petition for a discharge, the district judge adjourned into the Circuit Court the question- — Whether the act óf 1841, establishing a itaiform system of bankruptcy, was constitutional, of otherwise. The"judges were divided in opinion on the question, and a certificate, of division was made to the Supreme Court; calling upon this court to decide the' question, and return it so decided, to be entered as-the judgment of the Circuit Court!

The district- judge may adjourn into the Circuit Court any question, whether he has, or has not, doubts regarding its decision. Its importance is a sufficient reason. . That he properly adjourned the question, whether the bankrupt law was or was not constitutional,.is free from doubt.. Of this question, the Circuit Court had full ánd proper jurisdiction; and the decision of it would have been conclusive of the case before us.

Was it a “question” on which-the judges could divide.in opinion ?

The abt of April 29, 1802, provides: That whenever any question shall occur before a. Circuit Court, upon which the opi-' ilion of the judges shall'be opposed, the point upon which, the disagreement shall happen, shall during tlie same term, upon the request of either, party, or their counsel, be stated under the direction of the judges,, and.certified under the seal of the court, tó fhe. Supréme Court, at their next session to .be held thereafter; and shall, by the said court, be finally decided. And the decision of- the Supreme Court, and their order in the premises, shall be remitted to the Circuit Court, and be- there entered of record,' and shall have effect according to the nature of thé said judgment and order: Provided, That nothing herein contained sháll prevent the cause from proceeding, if, in the opinion'of the-court, further proceedings can be had without prejudice to the merits.”

The act declares, when any “ question shall occur before the Circuit Court,” &c., then, ón a division, a certificate shall be made at the request of either party. No matter in what form of proceeding it occurs, be it at law or in equity; divisions are nearly as frequent in causes in equity as at law. Under the bankrupt law, the proceedings are in the form prescribed to courts of equity.

Now, “did a-question occur,” in the Circuit Court? It must be admitted that one of the gravest occurred that, could be presented to a court of justice: there’ jt was to be decided, and the case, concluded by its decision. The judges were opposed, and it could not be decided: then it was their duty, at the request of either party, to send it to this court, to decide for the Circuit • Court; where the decision of the Supreme Court is to be entered as the judgment of the Circuit Court.

So far the case presented, seems to be sufficiently clear; but it is met by another consideration; and that is, whether the Circuit' Court, in a question adjourned under'the 6th section of the bankrupt law, consists of the two judges, or of the circuit judge only.' In all other cases, in the Circuit Courts of the United States, except in writs of error and appeals from the. District Court to the Circuit Court, (an exception made by positive legislation;) the two judges have equal powers — they constitute the Circuit Court usually; and must do so when a ' division takes place: does.the bankrupt law cut off these powers of the district. judge ?' The law does not so provide; and can it be justly inferred ? If the district judge cannot be a memoer of the court on. the- hearing of the adjourned question, then no division, of course can take place. To come at the inference of his exclusion, the intention of Congress must be ascertained from the whole scope of the act.

Great questions were involved in its construction. It was to be administered by rflore than thirty judges, acting separately; no appeal to the Circuit Court was allowed, save in a single case: that of a refusal to finally discharge the bankrupt from his debts, (sec. 4;) and then the Circuit Court is commanded, if the bankrupt shall be found entitled to the benefits of the act, “ to make a decree of: discharge, and grant a certificate, as provided in this act.” ■ No appeal is allowed to this court from the decree of the Circuit Court: the creditor is riot allowed an appeal, either from the District Court to the Circuit Court, or to the Supreme Court, ■in any case. Nor is the debtor allowed an appeal from the decree of the Circuit Court, refusing his discharge. Such is the unanimous opinion of my brethren now present; and with which opinion Lconcur. If the discharge is objected to by the creditors, arid the District Court refuses it, the debtor may then demand a trial by jury, and try the matter oyer again: if the jury decides against him also, he may then appeal to the Circuit Court, and ■there elect to submit the matter a third time, either to the court, or to another jury; and this finding is conclusive, whether by the court or a jury. It is not possible, therefore, to reach this ■ court by appeal, in a bankrupt case. ■ This is clear; and my brethren think it equally clear, that no adjourned question can be brought here by a division of opinion: it follows, this court has no revising power over the numerous and conflicting constructions of the, bankrupt law.- In some circuits it is held, that one'ihdebted in consequence of a defalcation as a public officer; or as . executor,'or administrator^ guardian, or trustee; or while acting in any. other fiduciary capacity,” can be discharged from ail his other debts; and that the less favoured creditors may take all his property, unless the government, ward, &c., see. proper to come in for distribution j .when' the fiduciary claim will also be extinguished. In other circuits, those indebted to any amount in a fiduciary capacity are all excluded ás a class: the fact appearing ort the face óf the petition, it is dismissed of course. Such is the construction of the act in the eighth circuit; it has excluded from applying- great numbers in the eighth and other circuits, who would have been admitted had they applied in circuits where the law is construed otherwise. This question also has been brought here by a division of' opinion from the district of Kentucky, at the instance of the district and circuit judges, acting together as the Circuit Court; the question having been adjourned, into that court by the district judge.

In the case of William Nelson, the question occurred in the same court, whether the bankrupt law was unconstitutional and oid, or otherwise. It was adjourned, as already stated, .into the Circuit Court, by.the district judge; and there the judges-were opposed in opinion, and certified, the question to this court for-its decision. This was done at the instance of the bar of- St. Louis; the district judge of Missouri having pronounced the bankrupt' acta mere insolvent law; suéh as was never contemplated-by the framers of the Constitution, and therefore void. The following are some of his reasons for entertaining this opinion:

“Is this act of Congress, under which the petitionér claims a discharge from his debts, authorized by the Constitution ?' In order to determine this, it will be necessary to notice several of ■ its provisions.

“ It provides, in substance, that any person, whether a trader or not, who is indebted, except in a few enumerated cases, may . file his petition .in the District Court of the United States, for the benefit of the act, at any time he may please, without the consent or action of any of his creditors, and obtain by a decree of the court, a discharge from all his debts. This decree is to be had without the consent of any of his creditors being required, even if they do not participate in the proceedings or receive a dividend from the property. The decree is to be deemed a full and com-' píete discharge from all his debts, contracts, and engagements, proveable under the act, whether contracted before or after the passage of the act. If he has property, he surrenders it; if he has none, it is the same thing as it .regards his discharge.

“ In examining this question, we should ascertain, if possible, what was the object -the convention had in view by inserting the provision. The phraseology adopted would indicate a part of the object: ‘ To establish uniform laws on the subject of bankruptcies throughout the United- States.’ It was apprehended, at least, that they would not be uniform, unless. Congress had the ■power to make them so. In addition to this,.we are told by Mr. Madison (Fed. No. 42) that‘the power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation ■ of commerce, and will prevent so many frauds where the parties or their.property may lie or be removed into-different states, that the expediency of it seems not likely to be drawn into question.’ To have a system that would be uniform and would prevent frauds, &c., seems to have been the objpet. The proposition was referred to the committee of detail, of which Mr. Rutledge was chairman, and reported as it now stands in the Constitution. • In ascertaining what were the mischiefs to be remedied or the objects to be effected, the convention, doubtless, looked to the condition of things, and of course to the institutions and laws of the various states. But for a definition of that or any other legal term, or to ascertain the nature and extent of the powers they were about to grant, by particular words or phrases, they would hardly look to the laws of the states. There was far less intercourse in those days than at present. There were no steamboats, railroads, or Macadamized roads.

• “ The laws of the several states could not have been generally known to the members of the conventioafrom the different; states; even the best lawyers could not have been acquainted with the laws of the states in which they did not practise. They are not so, even at this day. If they had been acquainted with the laws of all the states, to which would they have referred in preference to all the rest, for definitions, or the meaning and extent of legal terms ? The convention well knew it was making a Constitution fdr the .whole Union; that the terms they might use should be known and understood, and must be interpreted and explained in every state. They were, therefore, exceedingly exact in the use of words and phrases: every word of legal import, every phrase'was weighed and considered; and a phrase of only a féw words was frequently referred' to a committee, as. was done in this case, and examined and reported on. They were frequently obliged to use legal terms; they were making a law; this was a legal term — bankrupt laws: what was to bé done to prevent confusion and uncertainty ? and, above all, to mark exactly and with legal precision the extent of the powers they were about to-grant, that- neither more nor less power might be granted than was desired ?

“Our ancestors had removed from England; the United States had then7 lately been English colonies and part of the British empire. The English laws, and system of jurisprudence had been substantially adopted in every state in the Union. Every person at all conversant with legal subjects, and every lawyer of course, was acquainted with thé English laws. This knowledge was equally', extensive in ¿Very state. It is so to this day. Here,-then, was a law with which all were acquainted, and to which all could refer. There could' be no mistake, if reference was made to it for the meaning of terms.- And to it they did accordingly refer. We do so to this day. Ask a lawyer the meaning of a legal term, and where does he look for an answer ? Tó the statutes of Massachusetts or Georgia — New York, Pennsylvania, or Virginia? Certainly not. In most instances he would look in- vain.

“The proposition' in. regard to bankruptcies was made by Mr. Charles Pinkney, of South Carolina, in the words - we now find in the Constitution. It was. referred tó the committee- of detail, consisting of Mr. Rutledge of South Carolina, Mr. Randolph of Virginia, Mr. Gorham of Massachusetts, Mr." Ellsworth óf Connecticut, and Mr. Wilson of Pennsylvania; and they reported it in the words in. which- it was referred. Now, several of these states never had any thing like, a bankrupt law. To which then did they refer, or could ■ they refer, to ascertain the meaning and extent of the terms they were employing ? The lawyer, if he is not familiar with the term, will refer to Rlackstqne’s Commentaries, or to an English Law Dictionary, where he will readily find it. If he referred to the statutes of the different states, he might get as many definitions .as there-were states, supposing they had any law off the subject.

“The first Continental Congress, in 1774, declared, among other things, ‘that the respective colonies were entitled to the benefit of such-qf the English statutes as. existed at the time of their colonization, and which they had, by experience, found to be. applicable to their several local ¿nd other circumstances.’ 1 Journal of Congress, 28, Phila. ed. of 1800.

“Many of the. states had adopted, in a body, the English statutes, only excepting such as were local to that kingdom* or not applicable to their situation.

“ The Supreme Court of the United States, in Patterson «. Winn, 5 Peters, 233, say, that ‘the English statutes, passed before the emigration of our ancestors, and applicable to our situation, and in' amendment of the law, constituted a part of the common law of the country.’

. “ We know, as matter of history, that the members of the coavention who took part in debate, were intimately acquainted with the English laws. The committee above mentioned possessed sevéral of the most eminent lawyers in America, and who have held the highest legal stations. Reference was often made by them to the English, laws for the meaning of terms or phrases , they were using; Thus, when it was proposed to definé and limit treason against the United States, Mr. Randolph and Mr. Ellsworth; (two of the committee,) Mr. Madison, Mr. Mason, and Mr. Gouvernehr Morris, all referred to the act of Parliament of 25th Edward 3d 5 and the convention, at last, adopted the precise phraseology of that act. Madison Papers, 1770. Again, when the phrase ‘ ex post facto’ was under consideration, Mr. Dickerson stated that, on examining • Blackstone’s Commentaries, he. found the term related to criminal cases only. Mad. Pn.p. 1450. And the Supreme Court has since confirmed the signification of the terms to the definition given by Blackstone. Mr. Hamilton, who was a member of the convention, in speaking of the ‘Habeas. Corpus’ provision in the. Constitution, refers to, and quotes, Blackstone’s Commentaries. Fed. No. 84.

This, general principle being established, we may go a step further, and show that, in point of fact, the convention had the English statutes in view, in determining the nature and extent of thepower they were granting to Congress, when the bankrupt clause was under consideration.

“Mr. Sherman observed ‘that bankruptcies were, in some cases punishable with death by the laws of England, and he did not choose to grant a power, by which that fnight be done here.’ ’ 3' Mad. Pap. 1481. ■ ■ It thus appears, that ihe law of England were the laws referred to in regard to the definition and na- - ture of the powers they viere conferring.

“ It may also be remarked, that Blackstone’s Commentaries were in the hands of the members, and frequently referred- to. This book contained a definition of a bankrupt, and a summary of the English laws on the subject. What then was the English' law to which the convention referred when they adopted the clause in regard to bankrupts ? The English system, when the convention .sat, had been in operation for several generations; and'provided,'in substance, a proceeding by a creditor against a -debtor, .who was'a trader; distribution of bankrupt’s effects.. equally among his creditors; a discharge to be obtained by the debtor from his debts, upon obtaining the consent of a given majority of his creditors.

“It was a proceeding for the benefit of creditors, as are all laws for the collection of debts, .of which this was one; but with liberality towards the debtor, who, by misfortunes so frequently attending trade, became unable to pay his debts, in allowing him a discharge from those debts, upon obtaining the consent thereto of a given majority of his creditors. Even this provision for a' discharge, we are told by Blackstone, was intended for the benefit of creditors, as it influenced debtors to act with economy, industry, and honesty, and make a full surrender of their property, without which they could not hope to obtain the consent of their creditors.

“The whole system-was founded on the principle, that a trader, who. owed debts in various parts 01 the country, and was fraudulently making way with his property, instead of paying his debts.with it, should have that property taken away and placed in the hands of trustees or other officers, with which his debts should be paid, and each of his creditors, whether absent- or present, have his fair dividend. .

“We are told by Mr. Madison, who has, not inaptly, been called the Father of the Constitution, that a uniform system of bankruptcy ‘would prevent so many frauds, when the parties, or their property, may lie or, be removed into different states, that the expediency of .it seems not likely to. be drawn in question.’ Fed. No. 42. This reason for the adoption of the clause in regard to bankrupts was published by Mr. Madison after the Constitution was proposed by the convention, but before it was adopted by the states;.was intended to explain the grant of power to Congress, and to induce the states to accept the Constitution; and no doubt had its effect. The frauds of. whom-* — the removal of whose property, are here spoken of? Certainly the frauds of the debtor — the property of the debtor.

“ We have another almost contemporaneous exposition of this •grant of power to Congress. It-is the áct of Congress of 1800, ‘To establish a uniform system of bankruptcy throughout the United States.’ It is altogether, in its principle and material features, like the English system; á proceeding by creditors against debtors who are traders; distribution of bankrupt’s effects equally among creditors; a discharge of the bankrupt from his debts, on the consent' obtained of a given majority of his creditors.

“I have now,I think,shown that the bankrupt system intended by the framers of the Constitution, and to establish which, power was given to Congress, was a system for the -benefit of creditors, to enable them to collect their just debts, and to prevent the frauds of debtors who might remove their property and themselves into different states. .

“ I will now show that the act we are considering is solely and entirely for the benefit of debtors, and to enable them- to avoid their debts; and therefore opposed to the whole intent, spirit, and object of a bankrupt law. For this purpose I will here further notice some of its provisions.

“ 1. The debtor selects his own time to commence proceedings— when he may have entirely squandered his property, and when nothing can be found. It is not even necessary that he should have been sued, or threatened with a suit, or ever asked for the debt..

“2. He is allowed to select the state and county where he will commence proceedings. For this purpose he can change his residence or business to any place he may think most favourable. He can thus go where nobody is likely to. detect his frauds.

“3.- He'may have spent all his property in idleness, riotous living, debauchery, or gambling, in stocks, or wild speculations: it w-ili not affect him; and he is entitled to his discharge, equally with the most prudent, industrious, and economical person.

“4. If he does not surrender to his creditors one cent’s, worth of property, he may have property reserved to him, to the amount of $300, for his own use; and also his wearing -apparel, and that of his family, which has been held, by some, to include jewelry.

. “5. If a majority of his creditors should object to his discharge, it will only give him an additional privilege — that of demanding a jury, and taking the cause away from the court. Or he may appeal, even before the' cause is tried, and is allowed ten days to appeal in. No such privileges are given to creditors.

“ 6. After the court disposes of the matter, or"decides the cause against him, and refuses the discharge, he can then have it referred to a.jury, although already tried and decided by the court, which, heretofore, has never been, allowed in any case, either in law dr equity. The creditor is allowed no such privilege.

“ 7. -In such cases, nd provision is made by the act to allow the creditors a trial by jury.

“8. An appeal is giveti to the debtor — none is allowed by the act fo a'creditor.

“9. When the cause is removed into the appellate court, the debtor can demand either a trial by jury or a trial by the court. The creditor has no such privilege.

“10. The debtor may take the chance of a decision in his favour by the court; if in his favour, it will be conclusive. If the court decides against him, then he may demand a jury, and have another chance. If the court decides against him, he can have another- chance by appeal. In the' appellate court, if he thinks the court is likely, from previous decision, to be against him, he can take the chance of a jury. If he thinks, the jury is likely to be against him, he can take his chance with the court. If some of these chances do not hit, there is no uncertainty in the law.’ The creditor has no choice; any decision against him is to be final, and scarcely any in his favour is allowed to be final or conclusive.

“11. The English bankrupt law and the act of 1800 gave the appointment of the assignee to the creditors, because they alone were interested. No-such privilege is given by this act.

“12. The commissioner is to be appointed in the county where the bankrupt lives.

“13. There is no punishrnent for frauds.

“14. To. conclude, the debtor is to get a discharge from all his debts, without- the consent of any creditor. It applies to debts contracted before the passage of the act, and of which creditors could have had no idea at the time they gave the credit.

“ May I not here inquire, whether it is fair to construe thi° grant of power, intended for the benefit of creditors, and to enable them to collect their just debts, so as to authorize the passage of" a .law solely for the benefit of debtors, and to enable them to avoid and discharge their debts ?

“Again: a clause had been introduced into the Constitution, prohibiting the states from passing any law impairing the obligation of contracts, because," as was said by the members of the convention, it was immoral, contrary to the first principles of justice, and a power that ought not to be exercised by any legislative body. Would the states have ratified the.'Constitution, and submitted to' such" a prohibition on themselves, for such reasons, if ■ they had understood that Congress could; at its pleasure, under colour of bankrupt laws, authorize the abrogation of all contracts?”

Pursuant to the opinión, decrees were entered, dismissing the first cases presented for final discharges in the district of Missouri; and some twelve hundred'more, depending in that court, will be. dismissed, unless the-.decrees are reversed which have, been entered. It was thought, by the circuit judge, due to the county at large, and to the parties ■ concerned, that this important question should meet with the speedy decision of this court; and therefore it was brought here.

No law that Congress ever passed, has in it to a greater degree, the' elements of various construction and confusion, than the bankrupt-law óf 1841, when administered by more than .thirty judges, acting separately; if all are exempt from the revising power of this tribunal, created for the purpose (amongst others) of producing uniformity of decision and construction in all cases over which its jurisdiction extends.

I think Congress intended, by the 6th section of the bankrupt' law, to gii 3 the district judge the power to adjourn questions into the Circuit Court, 1. For the purpose of obtaining the.aid and assistance of the circuit judge; and, 2. To make up a division of opinion on great questions, so that the decision of the Supreme Court might be had. This was contemplated by. Congress ; or it was intended that in no bankrupt case should this court , have a revising power, although in every district in tlie United States the law might .be differently construed: and the. wildest prediction could hardly have exceeded the reality. So far from being “a uniform system of bankruptcy/’ in its- administration, it has become, by the various and conflicting constructions put upon it, little more uniform than the different and conflicting state insolvent laws. This result could not have escaped those who passed the law; it was too prominently manifest to be overlooked; I-cannot, therefore,bring my mind to the belief that the revising power of this court was intended to be cut off. And, as the most expeditions' and convenient mode o. revision was by a division of opinion, I think Congress intended that should be the mode. Notwithstanding the question was sent to this court, the case might progress below at the election of the- district court; so the recited act of 1802 provides;' and then the creditor and debtor would have equal opportunities to redress a perverted construction. But, as the matter now stands, the remedy is with Congress, either to give ihis court jurisdiction, or to withhold it.

order:

This cause came on to be heard on the transcript of the record from; the Circuit Court of the United States for the district of Kentucky, and on the. points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified'to this court for its opinion, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed, for the want of jurisdiction, and that this cause be and the same is hereby remanded- to the said Circuit Court, for such proceedings to be had therein as to law and justice may appertain.

While this volume was in press, we received the following opinion delivered-by Judge Catron in his judicial district, which we insert as being.of general interest.

In the matter .of Edward Klein.

This is an appeal from the District Court of Missouri, in • a case of bank-, ruptcy, on the voluntary petition of the appellant, to be discharged from his debts, on the stirrender of his property, according to' the act- of Congress of 1841. The proceeding being in all respects regular, the petitioner moved for his discharge: the District Court refused to grant such motibn, “because it considered the act of Congress under which said Klein asked to be discharged from all his debts, as-being against the Constitution of.the United States; and therefore the court had no power to grant such discharge.”

The ground of., this judgment the Circuit Court is called upon to revise. I am relieved -from setting forth at any length the opinion o'f the district judge, because this has been already done, in an opinion delivered by me in the Supreme Court of the United States at its last term, when an attempt was made to bring the present question before that court to-haye it decided-for the purl poses of this case.

By the Constitution, Congress is vested .with power “to. establish uniform laws. on the • subject of bankruptcies throughout the United States.” The district judge was of opinion, that the extent of the power is limited to the principle on which the. English'bankrupt system was founded; and-to that system the convention referred, when it adopted the clause above recited, for’its definition. That system provided, a proceeding by a creditor against a debtor who was a trader; a distribution of a bankrupt’s'efiects equally among his creditors; and a discharge of the debtor from his contracts upon obtaining the consent of a given majority of his creditors. That it was a proceeding for the benefit of creditors; the whole system being founded on the principle that a ’ trader who owed debts in various parts of the country, and was fraudulently making away with his property, instead .of paying his debts with it, should have the property taken away and placed in the hands of trustees or other officers, with which his debts should be paid; and each of his creditors, whether present or ■ absent, have his fair dividend; and that the bankrupt law of 1800, is a fair exposition of the constitutional provision.

Briefly: That a bankrupt law, was one, by which honest creditors could force fraudulent debtors, who were traders, to surrender all their property,- to pay rateably all their just debts : but that a law made solely and-entirely for the benefit of debtors, and which enabled them at their own election, to avoid their debts,- was opposed to the whole intent, spirit, and object of a bankrupt law.

I' state thus much of the grounds on which my brother judge’s decree was founded from his printed opinion, because this case has not been argued on part of the creditors; for whom no counsel appeared in this court, nor did there in the court below, as I am informed. . The accuracy, industry, and unquestioned ability of the district judge, have, I do not doubt, brought forward the best reasons that exist, in support of the judgment he gave. The tenor, and true spirit, of the English bankrupt laws, such as they were when our Federal Constitution was adopted, he has given; and I agree with him, that the act of 1841, in so far as it permitted the debtor at his own sole election, to come into-court and coerce an extinction of his debts, and abrogation of his contracts, ' contrary to the wili of his creditors, was in violation of the leading principles on which the English laws were founded. Our law contemplated a‘ proceeding by a debtor against-his creditors; provided the debtor was insolvent: by the English law, the creditor qlone could originate the proceeding; and it mattered not, whether the defendant was insolvent or otherwise; if he did the fraudulent act, it made him a bankrupt — a fraudulent trader. Then by the English laws, “ a fraudulent trader” could only be a bankrupt; with him as debtor; and With his creditors, could courts deal; and this at the election of the creditors — the debtor, having no election to .ask for distribution or for a discharge iron) his debts. If the power conferred on Congress, carries with it these restrictions, then the District Court properly refused to discharge the applicant Klein, because the act of-Congress was unconstitutional in his case. But other and controlling considerations enter into the .construction of the power: it is general and unlimited, it gives the unrestricted authority to Congress over-tjie entire subject, as.the Parliament of Great Britain had-it; and as the sovereign states of this Union had it before the time when the Constitution was adopted.. To go no further: what was the power of the states on thg subject of-bankruptcies! They could, and constantly did, permit the debtor to come involuntarily and surrender his property, and ask a discharge from his debts; the property was distributed generally among the creditors, and the debts of the petitioner annulled. Nor does the Constitution prohibit the states from passing such laws; New York, Pennsylvania, Louisiana, and others,-now have them in full operation. The insolvent laws of Pennsylvania are in substance, and to a great extent in detail, similar to the act of Congress of 1841; and no doubt furnished some of the ideas that were incorporated into the act.' That Pennsylvania had power to pass these laws, no one ever doubted, so far as she was not restricted by the Constitution of the United States. The Supreme Court held, in the case of Ogden v. Saunders, 12 Wheat. 213, that the states retained the power and could exercise it by law, and that the law would operate to discharge the contract between debtor and creditor; they being inhabitants of the particular state at the date of the proceeding, if the contract had been made there after passing the law. In such case the parties contracted subject to the law, and it entered into the contract. The case of Boyle v. Zacharie and Turner, 6 Peters, 635, settled the contested question of power; and that it remained with the states to this limited extent.' But the restrictions depend on general principles of international law, and other parts of the Constitution; especially that, which, prqhibits the states from passing any law impairing the obligations of contracts; as will be seen by reference to the leading case on the subject, of Sturges v. Crowninshield, 4 Wheat. 122.' What the states might do before the adoption of the Constitution, may well be ascertained, from what they now do in "virtue of their respective powers. They may frame a bankrupt law in any form they see proper; this has never been questioned so far as my knowledge extends. The controversies in the Supreme Court turned on the question, whether the Constitution inhibited the states (there being no acts of Congress opposed to it) from legislating on the subject of bankruptcies ; or, whether the power was exclusive in Congress. In the state tribunals the debtor comes involuntarily, and forces the creditor to prove his debt or be barred. One not á trader may apply: neither is the consent of the creditors (or any portion of them) necessary to authorize a discharge from the contracts of the debtor. Sb he may have no property to divide, and many debts to annul, from which he seeks a discharge, and from which he is discharged. These powers clearly belonged to the state governments, before Congress .was invested with them; and this was done without limitation.

The District Court relied confidently on the ground, that Congress can pass no law violating contracts; and that the clause of the Constitution conferred no such authority, because-the English bankrupt laws, by Which the power is supposed to be restricted, only permitted the contract to be annulled at the election of four parts in five of the creditors in number and value; and therefore they annulled it by a new contract. This argument proceeds on the assumption, that a proceeding in bankruptcy can only be had, at the election of, and for the benefit of creditors; and that every material step, is Iheir joint act; to tyhich the debtor is compelled to submit. For the present it will only be necessary to say, that one prominent reason, why the power is given ,to Congress, was to secure to the people of the United States, as one people, a uniform law, by which a debtor might be discharged from the obligation of his contracts; and his future acquisitions exempted from his previous engagements: that the rights of debtor and creditor, equally entered into the mind of the frámers of the Constitution. The- great object was to deprive-the states of the dangerous'power to abolish debts. New provisions in the Constitution have-had more bi 'eficial consequences than this; and the kindred inhibition on the states, that they should pass no law impairing the obligation of contracts.

The inhabitants of-states producing largely, must be creditors ; the inhabitants of those that are consumers, will be debtors; bankrupt laws of the latter states,might ruin the producers and creditors ; -they having no interest or power in the government of the consuming states, and it being the interest of the latter to annul the, debts of non-residents, .no remedy'would exist for the grossest op pression. No laws of relief would be more effectual in times of pressure by' foreign creditors; nor more likely to be adopted. If one state adopted such "a measure, it would furnish a fair occasion for others to do the same, on the plau sible pretext of self-defence; others would be forced.into a similar bad policy, until discredit and ruin would overspread the entire land, by an 'extinction of all debts; and a consequent prostration of morals, public and private, on the subject of contracts.' This evil had to a certain extent occurred, and was fresh in the minds of the framers of the-Constitution; and no doubt it would again occur in some of the' states, but for the provisions under consideration standing in the way, of abrogating the private contracts of non-residents.

But if Congress passed. the law, it must be uniform- throughout the United. States; then the entire people are equally represented, and have the power .to - protect themselves against hasty and mistaken legislation, by it's repeal, if found oppressive in practice.

- Legislation by Congress on thesubjectof bankruptcies, is of much less consequence,' than its prohibition on part of the-states. They can pass no -law-affecting a non-resident, because no jurisdiction exists of his person; they can inipair no contract made out'of the state, because it was not made subject to the state insolvent law. The power, as it stands' restricted by the decision in Ogden v. Saunders, is almost harmless;' those whom the state bankrupt law can ■most affect,-have the popular vote in the state legislature, dnd may repeal the law; the foreigner has-little* interest in its existence, as he cannot be affected ' by it, furth'er'than that the debtor may be .deprived of his property.- Another reason why Congress was vested with the power,-was to prevent dangerous conflicts of jurisdiction among the states. . A discharge in one sovereignty from contracts,-is by the laws of nations not recognised as a discharge in-another sovereignty,- save on the grounds of comity; an assignee under the British .bankrupt laws, is not recognised in this country.as owner of the debts of the bankrupt;-and an attaching creditor, or the government may disregard.ii title set tip by .-the'foreign assignee. Harrison v. Sterry, 5. Cranch, 298. The státes in' this respect are foreign to each other, and w;ould be little likely to extend comity to. .the discharge 'of each others;. from. which, great confusion might follow, and much ill will.

. In considering the question before me, I have not pretended to give a definition ; (but purposely avoided any attempt to' define) the mere word, •-bas-káupTCY, It is employed in the .Constitution in the plural, -and as part of an expression';“ the subject of-bankruptcies.”- The ideas attached to the word in this connection, are numerous and complicated ; they form a subject, of extensive and complicated legislation; of this subject, Congress has general jurisdiction ; and the true inquiry is — To what limits is that jurisdiction restrictedl'.

Í hold, it extends to all cases where the law causes to be distributed, the property of the debtor among his creditorsthis is its least limit. Its.greatest, is a discharge of the debtor from his contracts. And all intermediate legislation, affecting substance and form, but tending to further the,great end of the subject - — distribution and discharge — are in the competency and discretion of Congress.

With the policy of a law,"letting in all classes, others-as-well as traders; and permitting the bankrupt to come in voluntarily, arid be discharged without the consent of his creditors, the courts have no concern; it belongs to the lawmakers.

I have spoken of átate bankrupt laws. I deem every state law, a bankrupt law, in substance and fact, that causes to be distributed by a tribunal, the property of a debtor among his creditors; and'it is especially such,'if it causes the'debtor to.be discharged from his contracts, within the limits prescribed by thc.case of Ogden v. Saunders. Such a law may be denominated an insolvent law; still it deals directly with the subject of bankruptcies, and is .a bankrupt law, in the sense of the Constitution; and if Congress should pass a similar law, it would suspend the state law, while the-act of Congress continued in force.

This court deeming the act of.1841; constitutional, it is ordered, that the decree of the District Court dismissing the proceeding be reversed, and the petitioner, Klein, be discharged from, his debts, and receive his-certificate. The same order is directed in the case of Christopher Rhodes; dismissed also on constitutional grounds by the District Court.


text:
    Charles W. Castleman, a petitioner in bankruptcy.
    (This case is similar to that.of. Nelson.)
   ORDER.

This cause came on to be heard on the transcript of .the record from the Circuit Court of the United States for the district of Kentucky, and on the points and questions on which the judges of the said Circuit -Court were opposed in opinion, and which- were certified to this court for its opinion, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be and the same is hereby remanded tq the said Circuit Court, for such proceedings to be had therein as to law and justice may appertain.


text:
    Joel Collins, a petitioner in bankruptcy, v. James Blyth, an opposing creditor.
    (This case is similar to that of Nelson.)
   ORDER.

This oause came on to be heard on the transcript of the record from-the Circuit Court of the United States for the district of Kentucky, and on the points and questions on-which the judges of the said Circuit Court were opposed in opinion, and was argued by'counsel.- On consideration whereof, it is now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed for the want of jurisdiction, and that this cause he and the same is hereby remanded to the said Circuit Court, for such proceedings to be had therein as to law and justice may appertain.


author: Mr. Chief Justice TANEY

text:
    William Taylor and others, Appellants, v. George M. Savage, executor of Samuel Savage, deceased, Defendant.
    Where a decree is passed by the court below against ah executor, being the defendant, in a chancery suit, and before an appeal is prayed the executor is removed by a court of. competent jurisdiction, and an administrator de bonis non with the will annexed, is appointed, all further proceedings, either by execution or appeal, are irregular, until, the administrator be malde a party to the suit.
    If an execution be issued before the proper parties are thus made, it is unau- ■ ’ thorized and Yoid; and no right of property will pass by a sale under it.
    The- admin'istrator cannot obtain redress' by application to this court, but must first be made a party in the court below, -This may be done at the instance - of either side.
    After he is thus made a party,'he may stay proceedings by giving bond, or the complainants may enforce the ‘decr.ee, if the bond be not filed in time. ‘
    It is not clear that a complainant who has appealed from a decree in his favour, in the hope of obtaining a larger sum, can, pending the appeal, issue execu- ' tion upon the decree of. the court below.

      Morehead, of counsel for the appellee,
    moved the court for leave tó give an .appeal bond in this case, which shall operate as a supersedeas, and for leave to docket the cross-appeal, and for such relief as may meet the case.

      He stated that Taylor had obtainéd a decree against Savage, executor of Savage, in the court below, for $5000 and upwards; that the decree was actually rendered on the 29th day of November, 1842, but was entered' as of the' day before; that the complainant had appealed from this decree, and sent the record up to this court, where the case is now pending;. that an appeal was also prayed and allowed on the part of the-defendants; that this last-mentioned appeal-was net carried, out,'because, otrthe 28th day of November, the date of the decree, the Orphan’s. Court of Lauderdale county, in Alabama, removed Savage from his executorship, and appointed Vincent- M. Benham administrator de bonis non with the will annexed; that, of course, Savage could not give bond to prosecute, the appeal which had been allowed him, and Benham lived at a distance, from the court when the decree was rendered, and ■ was ignorant of the said decree, and of the change made in the representative. of the -estate; that the complainants,'notwithstanding their appeal, had taken out execution, which had- been levied upon the. property of the deceased-, and a sale was about to take place; that among the subjects 'of said levy were some -family negroes, who had been for several generations in the family; whom it would be especially painful to part with; that the complainants resided in Scotland and other foreign countries, so that there would .be no chance to recover back the money, if the decree .of the court below should be reversed.' ■
    Under these circumstances he moved for leave to docket the cross appeal, upon giving security, and for an order to quash the execution irregularly issued; and filed affidavits setting forth the facts stated above. ■ He stated that he had not been able to find a'precedent bearing upon the case, but argued to show that the petitioner was entitled to relief.

      Crittenden, contra.
    If no precedent can be found, it is a strong argument against the motion.' Distance of the residence of the complainants is no. reason for relief, because ■ one of the • parties ■ in every • suit must be the inhabitant of another state. The execution is not here; nothing but an affidavit. The petitioner has other means of relief than by coming to this court. As to the hardship of the case, twenty days were given below to file the bond. Why did not the party come in? It is said he lived at a distance. How far ? When was he told of the decree ? • The papers are studiously ambiguous. The complainants are not all foreigners; one of them is a citizen of Pennsylvania, and now in court. There is no irregularity in the execution.

      Sergeant, in reply, and for the petitioner.
    . If the papers are' ambiguous, the other side could have had them cleared up, because they have beén filed for some days.
    . This court has possession of the case by virtue of the appeal brought up on the other side.. United States Court and Orphan’s Court sat in different .places, and neither knew what the other did. After appeal, the case was not in the court below, because it was removed here, .and thé whole case brought up. The wrong has been done to the court itself; the party has been brought •here to defend the appeal, and then execution is issued against him.The only case like this is in 7 Cranch, 278. The execution is not noticed on the record at all, and mtist have issued after the record was made out.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case is brought before the court- by the petition of Vincent M. Benham, administrator de bonis non with the will annexed of Samuel Savage.

It appears that a bill, was filed by William Taylor and others,, in the District Court of. the United States for the northern district of.Alabama, against George M. Savage, executor of Samuel Savage, deceased, to which the defendant appeared and answered. ■Testimony was taken on both sides, and at the final hearing on the 28th of November, 1842, the court decreed that the complainants recover óf the respondent, as executor of Samuel Savage, $5212 92 and costs, to be levied of the goods and chattels, lands and tenements of the said Samuel Savage. On the same day the Orphan?s Court of I audefdale county, in the state of' Alabama, having competent jurisdiction for that, purpose, removed the said George M. Savage from his executorship, and appointed Vincent M. Benham, the petitioner above mentioned, administrator as aforesaid.

Huntsville, where the District Court of the United States held its session, and Florence, where-the Orphan’s Court of Lauderdale county was in session, were distant from each other between seventy and eighty miles; and the new administrator, Vincent M. Benha-m,-does'not- appear to have known, of. the-decree until some days after it was passed. At the time of the decree Harvey Dillahunty was attending to .the suit in chancej-y as the.attorney in fact of George M. Savage, the respondent, and two days alter-wards, that is to say, on the 30 th of November, 1842, in the name of the respondent, prayed an appeal ; and the District Court, with the consent of the Complainants, passed an order giving the said George M. "Savage liberty to file an appeal bond at’ any time within twenty days from the adjournment of the court. Qn the 2d of December, the cómpláinants also appealed, and on the samé day gave the usual bond to cover costs, which was, duly approved; and the transcript of the record and proceedings had in the- cause in the District Court have been transmitted to and docketed in this .court in the names of the said William Taylor and others,-complainánts and appellants, against the said George MJ Savage, executor of Samuel Savage, respondent and a.ppellee.

The executor having been removed as aforesaid, no bond was • executed by him nor hy Vincent M.Benhám, the administrator,, within the'time limited by the court; and therefore an execution was issued by the clerk of-the District Court against the property of Samuel Savage, by virtue of which the marshal has seized the property of ;the said deceased, and' is about to sell the-same in order to satisfy the decree.

In this state of the proceedings, Benham, the administrator-, has filed his petition at the present term, setting forth the facts as above mentioned, and offering to file a transcript of the proceedings on his part and to .give security on his appeal, and praying that his bond may be approved by this court, and the execution issued by the complainants superseded until the appeal can be heard and decided in this court. Affidavits have been filed on both sides, but there is. no conflict between them in any circumstance deemed material by the court; nor do they vary in any .important particular from the statement contained in the petition.

We are by no means prepared to say that a complainant, after having appealed from a decree in his favour, can be permitted, pending the appeal, to carry into execution the decree which he is seeking to reverse, in the appellate court, in order to obtain 'a decree for a larger sum. But the relief asked for. by the petition cannot be granted, because there, is no-case legally in this court upon the appeal of either party, upon which process can be issued The decree in the Circuit Court is against George M. Savage, executor of the last will and testament *of Samuel Savage deceased.

• There was no other party respondent -.in the District Court, and the decree was passed- against him iii his representative-character. Before' the appeal- was prayed on either side, he had ceased to be the representative of the estate of' Samuel Savage, and hád no control over it, nor any right to interfere with it by prosecuting or appearing to an appeal, or in any other maimer. By his removal from the office of executor, he was as completely separated from the business of the estate as if he had been dead, and had no right 'o appear in or be a party in this or any. other court, to a suit which the law confided to the representative of the deceased.. No further proceedings, therefore, could be had on the decree in the District Court, until Benham, the administrator de bonis non, was made a party.

In this view of the subject, it follows, 1. That the appeal of the ■complainants is not regularly before this court,.and the irregularity cannot be cured here unless the administrator voluntarily appears to it. The case may, however, upon the'application of the appellants, be remanded to the District Court, with leave to make the proper parties.

2. The execution issued on the decree was unauthorized and void, and no right of property will pass by a sale under it, if one should be made by the marshal.

3. The appeal of Benham, the administrator de bonis non, is also irregular; and the case cannot be brought here by him unless he is first made a party in the District Court.

But he may be made a party there, either upon his own application or that of the complainants, according to the rules and practice in chancery proceedings. And whenthis has been done, the administrator may take an appeal; and upon giving bond within the time prescribed.by law, all proceedings upon the decree will be stayed in the District Court, until the decision of this court shall be had in the premises. And if he fail to give the bond within the limited period,- the complainants will then be entitled to process from the District Court, in order to enforce it. As the case now stands, there is no suit here upon which this court can fotlhd any process to set aside the execution improperly , issued, and the petition of Benha.m, the administrator, must be dismissed.

order.

Ón consideration, of the petition of Vincent M. Benham, filed in, this case, and of the arguments of counsel thereupon had, it is how here ordered by this court that the, said petition be. and the same is hereby dismissed. •


text:
    William J. Minor and Catherine his wipe, Plaintiffs in error, v. Shubal Tillotson.
    Whether or not a record contains a bill of exceptions or statement, of facts; by the court, according to the practice in Louisiana, by which' any question of • • law is. brought up for revision in such a form as to enable this court to decide upon it; and whether or not there is a mass of various and conflicting testimony in relation to facts,'upon which no jurisdiction can be exercised upon; a writ of error; aré questions to he decided only upon the final hearing of the cause.
    The court will not go into this inquiry upon a motion to dismiss the writ of error, before the cause is-taken up for argument.

      Webster, of counsel for the defendant,
    moved to dismiss the writ of error in this case, for the -following reasons:
    1. Because this court has no jurisdiction on writs of error of any question apparent in this record.
    2. Because the record does not Show any question of law to have been decided in the court below, which this court can -revise.'
    3. Because there is no question of law stated on the record by hill of exception; nor any special verdict, or agreed state of facts, or any unquestioned evidence of facts, on which any-question of-law can arise.
    , 4. Because it does not appear whether any, or, if any, what matter of law was in dispute between the parties.
    The action was brought to recover certain tracts of land. Two trials had been had; the -verdict rendered on the first had been set aside by the court, and the judgment rendered on the second verdict reversed by this court.

      . Another jury was empannelled to try the cause, June* 11, 1839; and after the trial had proceeded for some time, the parties agreed that the whole' case should be submitted to the court, on the facts and the law, and' that the judge should state the facts as be should find,them; that such statement might be regarded as a special verdict.
    On the 10th April, 1840, the court rendered a general judgment for the defendant, without making any statement of facts whatever. And thereupon, the next day, April 11, 1840, the parties agreed that all documents, plans, depositions, evidence,-and exhibits, read in the cause, should be taken for a statement of facts in the case. Tlie whole mass, therefore, of various and conflicting evidence, mixed up with questions of law, if there be such questions, is submitted to the decision of the judges of this court. This is a form of exercising its appellate jurisdiction on writs of error which it is not supposed to be competent to this court to adopt. 2 Wheat. 363; '3 Peters, 410; 16 Peters, 169.

      Walker opposed the motion,
    and contended that there were three questions of law in the case, and that the statement of the judge was adopted, by agreement, as a special verdict.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is a writ of error from the Circuit Court of the United .States for the eastern district of Louisiana.

A motion has been made to dismiss the writ, upon the ground that the record contains no bill of exception, nor statement of facts by the court, according to the practice in Louisiana, by which any question of law is brought up for revision in such a form as to enable this court to decide upon it; and that there is a mass of various and conflicting testimony in relation to facts, upon which no jurisdiction can be exercised upon a writ of error.'

Assuming this statement to be correct, it does not follow that advantage can be taken of it upon a motion to dismiss. The-record shows that a judgment was rendered in the Circuit Court, over which this court undoubtedly have jurisdiction upon a writ. of error. The plaintiffs allege that there is error in law in this judgment, and have brought it-here for the revision o'f this court. And upon the argument of the' case it will be incumbent upon them to show that the record presents, in some form or other, a statement of facts upon which a question of law arose in the Circuit Court, and which ~was there erroneously decided. And if he fails to do this,’ the judgment must be affirmed.. But he is entitled to be heard, in order that he may show, if he can, that the error of which he complains appears in the record; and whether it does so appear or not, is a matter which cannot be inquired into in the form in which the case is now brought before us.

The motion must-therefore be dismissed.

ORDER.

On consideration of the motion made in this cause, on a prior ■ day of the present term of this court, to wit, on Saturday, the 18th ult., by Mr. Webster, to dismiss this writ of error, for the want of jurisdiction, and of the arguments of counsel thereupon had, as well in support of as against the said motion, it is thereupon now here considered and ordered by this court, that the said motion be and thé same is hereby dismissed.


text:
    James Todd, Appellant, v. Otis Daniell, Defendant.
   An agreement in writing between the counsel, as .well for the appellant as for the appellee, that the decree of the Circuit'Court in this case shall be affirmed with legal damages and costs for the said Daniell, having been filed'; it is thereupon considered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of 6 per centum per annum; and also that the said appellee recover of the said appellant, the further sum of $125 for the-costs of the transcript of the record in the Circuit Court according to the said agreement.