After the conveyance to the United States as above Mr. Scott and Mr. Umbdenstock, two of Bonfoey's sureties, offered to pay to the United States in compromise of their further liability on the judgment of December 11, 1873, the sum of $5,500. This offer of compromise was accepted by the Secretary of the Treasury on August 17, 1881, but the sum so offered and paid by them was refunded to them pursuant to the act of Congress of May 27, 1902. (Stat. L., 32, part 1, p. 240.) The proposed relinquishment by the United States of its title to the land in question is based upon the claim that Bonfoey was in fact, notwithstanding the judgment, not indebted to the United States at the time the judgment was rendered, and consequently that the United States has no rightful claim to the land. In support of this contention certain letters, affidavits, etc., are set out in Senate Report No. 360, Fifty-seventh Congress, first session, herewith, among which is a letter, dated September 20, 1886, signed by H. C. Rogers, Acting Commissioner of Internal Revenue, written in response to the request of Acting Attorney-General Jenks, from which it appears that after the arrest of Bonfoey for the killing of one of his deputies and while Bonfoey was in prison at Jefferson, Tex., the United States military authorities took possession of over $112,000 of public funds in Bonfoey's safes, and also received from Deputy Collector Wood a further sum of $27,000 collected by him on Bonfoey's account; that of the amount so received by the military authorities there was deposited with the assistant United States treasurer at New Orleans, on April 21, 1868, the sum of $68,932.59, leaving a balance unaccounted for by the military authorities of $70,344.66. The Acting Commissioner thereupon states the account as follows: Balance due the United States as shown by the adjusted accounts Amount to be charged as collected in advance of receipt list_ Making a total of Which sum, it is stated, deducted from the amount unaccounted for by the military authorities, viz‒‒‒‒ Leaves a balance due the estate of Bonfoey of---which is the exact balance due as personal salary unpaid. $43, 672. 88 20, 682. 35 64, 355. 23 70, 354.66 5,999.43 The foregoing information is also embodied in the Annual Report of the Attorney-General for the year 1886 (on page 265), in a letter signed by J. E. McComb, United States attorney for the eastern district of Texas, and by Leigh Chalmers, examiner, Department of Justice, giving the results of an examination made by them by direction of Attorney-General Garland. Those gentlemen conclude their report with the recommendation that the Government "by some proper action, release the lands levied on by reason of the aforesaid execution," meaning thereby the lands now referred to in H. R. 24466. And in his annual report for 1886 to Congress, on page 17, Attorney-General Garland said: "I submit, as Exhibit T, a letter from the attorney of the United States for the eastern district of Texas and from an examiner of this Department in relation to certain proceedings against the sureties on the bond of D. B. Bonfoey, late collector of the fourth district of Texas, a matter outside of the authority of this Departiment, and upon which, I think, Congress should take immediate action." In my judgment it is safe to rely upon the report made by United States Attorney McComb and Mr. Chalmers, an examiner in this Department, more than twenty years ago, when there was less difficulty in ascertaining the facts in the case than there would be if an investigation were attempted at this time. They were acting in obedience to instructions from the Attorney-General, and by their report show that they became satisfied from the examination of witnesses that when Bonfoey died he had in his safes internal-revenue funds to the extent of more than $112,000. I have examined their report and the affidavits submitted therewith and I believe they were justified in reaching that conclusion. A week after Bonfoey's arrest, and almost immediately after his death, Lieutenant Hawley, on the 13th or 14th of August, 1867, took forcible possession of the office, money, books, and papers belonging to Bonfoey against the protest of the senior deputy and legal custodian of the office, and this seizure was approved by the Secretary of the Treasury. The best evidence attainable (which it must be admitted is not entirely satisfactory) is that the amount of money in the safes at the time was as above stated. The safes and the money remained in control of the officers of the Army until April 21, 1868, and the officers in charge were Captain Smith and Lieutenant Hawley. The district attorney and Examiner Chalmers in their report say that Smith and Hawley were very dissipated men, and used the Bonfoey money for gambling, loaning to individuals for speculation, and other purposes, and submit affidavits in support of this charge. The amount turned over by Smith to the subtreasury in New Orleans in April, 1868, was only $68,982.59. Whatever more, if anything, was in the safes when they were seized has never been accounted for. There is nothing on record to show that the officers of the Army counted the money and reported anywhere or to anyone the amount taken into their possession in August, 1867. Honorable Attorney-General Miller, on February 7, 1890, in a letter addressed to Hon. John C. Spooner, United States Senate, said, among other things: "I have personally examined these three reports, and have no hesitation in saying that if sustained by the evidence, as the concurrence of the three indicates that they are, there would seem to be an imperative demand for legislation for the relief of these heirs." The affidavits submitted with the report of McComb and Chalmers tend to show that the sureties on Bonfoey's bond intended, as a measure of safety to themselves, to take possession of the safes and money in Bonfoey's possession belonging to the Government, and to keep the same for their own protection as sureties on his bond, but that they were prevented from so doing by the act of the military forces in taking possession of all the funds held by the collector. There is nothing shown by the investigation to indicate that the money was counted and a report made, either to the military authorities or to any officer for the Treasury Department, showing the amount which came into the possession of Lieutenant Hawley, and there is no other accounting that I can discover, save that his successor, Captain Smith, paid into the subtreasury something over $68,000 in April following. Notwithstanding the fact that judgment was finally entered against the sureties of Bonfoey, I am of the opinion that if all the facts that were subsequently ascertained had been brought to the attention of the court no judgment would have been obtained against the sureties. The United States Attorney for the eastern district of Texas, an examiner of the Department of Justice, two Attorneys-General, and several committees of Congress have been of the same opinion; and finally, in 1902, the $5,500 which have been paid by the sureties to compromise the judgment remaining unsatisfied after the sale of the lands was, by act of Congress, refunded to the sureties. This was done because it was believed that when Bonfoey died he was not indebted to the Government. The reasons which justified the refund of the $5,500 should control at this time. If the $5,500 was properly refunded, then there would be no justification for the Government retaining the lands which were sold under execution. I therefore say to you that in my opinion there are good and sufficient reasons why the bill releasing the title of the Government to the lands referred to should become a law. I wish to say, however, that in my judgment the act should be complete and sufficient in itself, without requiring any conveyance to be made by the Solicitor of the Treasury to the heirs at law or legal representatives of said William T. Scott, who was the owner of said lands. The act itself should constitute a sufficient conveyance and release, and the question as to who are the heirs or iegal representatives, or their assigns, of said William T. Scott should be settled by the parties in interest, and in the courts of the State of Texas, should any controversy arise in relation thereto. If the Solicitor of the Treasury is directed by the act to reconvey the lands to the heirs or legal representatives of said Scott, or to his or their assigns, it would become necessary for the parties claiming present ownership in the lands to make the necessary showing to the Solicitor to enable him to determine the various persons now entitled to receive said lands, which would be a great tax and burden upon them. The inclosure with your letter is herewith returned. Very respectfully, Hon. J. J. JENKINS, H. M. HOYT, Acting Attorney-General. Chairman Judiciary Committee, House of Representatives. DEPARTMENT of Justice, October 5, 1886. SIR: I have the honor to state that in obedience to your instructions to him, dated July 31, 1886, Leigh Chalmers, esq., examiner in the Department of Justice, reported to me for duty in the investigation of the sureties on the bond of D. B. Bonfoy, late collector of the fourth district of Texas, to have the proceedings now pending against them at Jefferson division of the United States court for the eastern district of Texas dismissed; said cause being Chancery No. 12, The United States v. William T. Scott, William Umbdenstock, et al., the object of this suit being to set aside a compromise heretofore made with the Government and to enforce the former judgment. After a full and careful investigation of the whole matter we respectfully submit the following: [The United States v. William T. Scott et al., Chancery No. 12, pending in circuit court at Jefferson, Tex., fifth circuit.] Statement. Davis B. Bonfoy was appointed collector of internal revenue of the fourth district of Texas July 27, 1866, and entered regularly upon the discharge of the duties of his office January 1, 1867, with William T. Scott, Reuben Knight, W. C. Bristow, W. E. Miller, B. H. Martin, and William Umbdenstock as sureties, with his office and residence at Marshall, Tex. He was a citizen of good standing, temperate, intelligent, energetic, and diligent in the discharge of his official duties. (See Ex. B, R, T, N.) He kept and used three several safes, in which he deposited Government money collected by himself and deputy-one small safe, which he kept in his office, in which he deposited daily collections; one large safe in Jones's store, in the lower part of the same building, and yet another large safe at his residence. It was his custom to handle all Government moneys pertaining to his office in person. On the receipt of money from his deputies he would count it, put a wrapper around the money received from each deputy collector separately, write the name of the deputy and the amounts on the wrapper, date of receiving the same, making it the same time on the same note on the accompanying monthly report of the deputy paying it in. The monthly report was handed to the bookkeeper to enter up, and the money thus wrapped and marked placed in the small safe kept in his office, and at the close of each day's business he would take the money from the small safe and carry it downstairs and deposit it in the large safe kept in Jones's store, where he would let it remain until the bookkeeper examined the monthly report and entered the amount on his books. The wrappers were then taken from the money and thrown away and the money carried to his residence and deposited in the large safe with the general fund. (See Ex. B, C, D, H, L, N, O, U, W.) On the 7th of August, 1867, Bonfoy had a difficulty with Fowler, one of his deputies, at Jefferson, Tex., about 20 miles distant from Marshall, in which he killed Fowler, for which he was arrested and lodged in jail at Jefferson. (See Ex. B, C, D, H, L.) At this time the State of Texas was under military rule and the civil arm of the State government paralyzed and powerless to protect its citizens. The sureties on Bonfoy's bond, upon the casting of their principal into prison, notified the Commissioner of Internal Revenue of the facts and applied to him for an agent to take charge of the business and the money collected by Bonfoy and remaining in said safe, which the Commissioner failed to do. B, R, T.) (See Ex. Mrs. Bonfoy, wife of the collector, becoming alarmed at the state of affairs, called upon Lieut. William Hawley, Twentieth United States Infantry, commanding the post at Marshall, for a guard to protect her person and the Government funds in the safe at the residence, which request was complied with, and the very guard sent to protect her cruelly murdered her, and a few days afterwards Bonfoy died. (See Ex. B, N, O.) Upon the imprisonment of Bonfoy, Lieut. William Hawley informed Lieutenant Blatchford, Twentieth United States Infantry, commanding the post at Shreveport, of the fact of Bonfoy's imprisonment and that there were large sums of Government funds left by Bonfoy and no one to take charge of them. Whereupon Lieutenant Blatchford ordered Lieutenant Hawley to take charge of the same. Obeying said order, Lieutenant Hawley, on the 13th or 14th of August, took forcible possession, by soldiers armed with muskets and bayonets, of the office, money, books, and papers belonging to Collector Bonfoy, carrying some to his camp and some to the court-house in Marshall, against the protest of S. D. Wood, senior deputy and legal custodian of the same in such case so made and provided (R. S., sec. ), and against the earnest protest of the sureties. (See Ex. No. 1, B, C, D, L, M, N, R, T.) This seizure was not only approved of by the Secretary of the Treasury, but the officers commended by him for the act. (See his letter in Ex. No. 1.) Hawley retained possession of the books, papers, etc., for several days, when he returned the small safe and some of the books and papers (in great confusion) to the said S. D. Wood, whom he placed in possession of the office with instructions to turn over to him, Hawley, all moneys subsequently collected. (See Ex. B, and B-in red ink.) There was at the time of the seizure of the safe by Hawley the following sums of money contained in them: In the safe at Bonfoy's residence, $47,337.25 Government funds, $13,000 Mrs. Bonfoy's private funds, and a small package marked "I. O. O. F." In the safe at Jones's store, $65,000; amount in the small safe not known, but several days' collections. (See Ex. No. 1, B, C, D.) The safe at Jones's store with contents has never been accounted for by the officer seizing it. Hawley received from Deputy S. D. Wood, of money subsequently collected, $27,000, making a total, with the money taken with the safe, of $139,337.25. This money Hawley held possession of for several months, when he turned a part of it over to Capt. T. M. K. Smith, Twenty-sixth United States Infantry, who had custody of the same until the 21st day of April, 1868, a period of eight months from the time of the seizure by Hawley, when he (Smith) turned over to the United States Treasury, a New Orleans, $68,982.59 of it, leaving a balance of $70,354.66 Government money and $13,000 belonging to Mrs. Bonfoy unaccounted for. (See Ex. No. 1, B B, red ink, and C.) The officers (Smith and Hawley) were very dissipated men and much addicted to gambling and used the money from the safe to gamble with, and loaned it to individuals for private speculation, receiving heavy interest for said loan. (See Ex. F, H, I, J, K, L, N, V.) At the April term, 1872, of the United States circuit court at Tyler, for the western district of Texas, four years after the death of Bonfoy, suit was instituted against the sureties on Bonfoy's bond. (Ex. S.) On the 11th day of December, 1873, judgment was recovered against William T. Scott, William Umbdenstock, et al., as sureties on Bonfoy's bond for $50,000. Notwithstanding this judgment, the defendants claimed at the time and sought to prove, and subsequent facts develop, that Bonfoy's account with the Government actually stood as follows: Davis B. Bonfoy, late collector fourth district of Texas, in account with the United States. DR. To balance as per report of Fifth Auditor, No. 6441. $130, 022. 68 CR. Taxes on bonded goods erroneously charged_-_ 5, 339. 19 2, 909. 48 757.27 Deduct amount deposited by Capt. T. M. K. Smith in United States 68, 982. 59 151, 204. 46 Deduct amount claimed by Government as per report Fifth Auditor, 130, 022. 68 Leaves 21, 181. 78 which was due Bonfoy by the Government at the time the judgment was rendered against his sureties for $50,000. (See Ex. A, and A, B, C, D.) This result was so foreign to what we anticipated, and so incompatible with the fact that a judgment had been obtained for so large an amount against the sureties, although it had been arrived at from facts obtained by us and the data furnished by the Solicitor of the Treasury, that we were unwilling to base a report upon it alone. For this reason, at the request of Mr. Chalmers, Hon. G. A. Jenks, Acting Attorney-General, addressed a note to the Commissioner of Internal Revenue, asking information on the subject, which was answered by a communication from H. C. Rodgers, Acting Commissioner, dated September 20, 1886, which is herewith submitted, marked Ex. No. 2, and made a part of this report. It will be seen from this communication that the Government was indebted to the estate of Bonfoy at the date of the judgment in the sum of $5,999.43. This reduction of the amount found by us to be due was made by credits to the Government, which we knew not of at the time we made up the account, nor are they contained in the data furnished by the Solicitor. This statement of the account, coming as it does through official sources and from official records. we, of course, adopt as more accurate than the result arrived at by us. In the trial of the suit, at Tyler, it appears that the defendants were forced to trial unprepared. (Ex. L. P. R. and S., pp. 69 to 78.) Execution was issued on the judgment and levied upon fifty-seven sections of land in Texas, formerly owned by William T. Scott, but sold and conveyed by him to a purchaser, not a party to the judgment, before the date of the judgment. An equity suit was instituted on behalf of the United States at Austin. in the western district of Texas, for the discovery of fraud in Scott's conveyance, and dismissed on defendant's answer. (See Wood, 334.) Notwithstanding this proceeding the land was offered for sale by the United States marshal and bought in by the Government, but no credit for the value of the same appears to have been entered on the judgment, or claim against the defendants. In 1879 the records of the court at Tyler, including said judgment, returned execution, and all the file papers were burned. In 1881 the defendants William T. Scott and William Umbdenstock, offered in compromise of said judgment $5,500, which, upon the recommendation of Edward Guthridge, esq., then United States attorney for the eastern district of Texas, was accepted by the Government. In 1884 a suit was instituted in the United States court at Jefferson, in the eastern district of Texas, to set aside said compromise on the ground that it was procured by fraud and bribery. (See copy of plaintiff's amended bill, herewith submitted and made a part of this report, marked Ex. Z.) The substance of this petition is, that the United States attorney, Edward Guthridge, was bribed by Scott and Umbdenstock to recommend said compromise, and that the statements made by him as to the solvency of the defendants were false. (For a more comprehensive view of all the facts in this case reference is respectfully made to the exhibits submitted and made a part of this report and marked No. 1 and from A to Z, inclusive.) The evidence is conclusive that at the time of Bonfoy's death the sureties used diligence in telegraphing the facts to the Commissioner of Internal Revenue at Washington, and asking him to send an agent to take charge of the office and effects, which was not done, but the office books, papers, and money were forcibly taken in charge by Lieut. William Hawley, Twentieth United States Infantry, then commanding the post at Marshall (the State being under military rule). against the protest of the legal custodian, Deputy S. D. Wood, and the sureties. That Hawley refused to have the money, except that in the safe at the residence, counted, or to render the sureties any statement or account of the same, although frequently requested by them so to do. The evidence abundantly shows that Hawley was a dissipated man, and used the "Bonfoy money freely for gambling and other purposes; that his suc cessor, Smith, was also a dissipated man, and loaned said money to individuals for speculation. That on the trial of the case against the sureties they were deprived of their defense by having, through mistake, presented their accounts and facts in favor of Bonfoy to the wrong officer at Washington for his action thereon, and said accounts were returned by said officer without any action thereon, which was not known to the defendants until they had announced ready for trial. (See Ex. L. P. R. S., pp. 69 to 78.) For eight years after said judgment nothing had been realized thereon (barring the question to the title to the above-named land), although sundry executions had been issued. That at the time of the compromise the defendants were insolvent, and that said compromise was to the interest of the Government. |