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United States v. Sturges et al.

4. The only remaining question is, as to the effect of the discharge of Minturn and Champlin from imprisonment by the Secretary of the Treasury, under the act of Congress of the 6th of June, 1798. This act, although it authorizes the discharge of the party from imprisonment, expressly provides, that the judgment shall remain good and sufficient in law, and may be satisfied out of any estate, which may then or at any time afterwards belong to the debtor. The effect and operation of such a discharge upon the liability of the coobligors in the bond, has received the direct decision of Mr. Justice Story, in the case of Hunt v. the United States. The leading cases in the books on this subject are referred to, and it is fully and explicitly admitted, that the operation of the discharge at common law, would be to exonerate the co-obligors: But under the special provisions of the statute, such is held not to be the effect. It is there said that the sole ground upon which a co-obligor is discharged is, that the debt or judgment has been once satisfied ; but that when the law has declared that a particular act shall not be deemed a satisfaction of the debt or judgment, it would seem to follow, that it could not be pleaded as a discharge of any party to such debt or judgment.

I do not mean to enter into an examination of this point as an open question ; nor would I be understood as intimating any doubt as to the correctness of the decision. But finding the point directly adjudicated in one of the Courts of the United States of co-ordinate jurisdiction with this, I shall adopt it as governing the present case. It is of the highest importance that there shouid be a uniformity of decision in the construction of statutes : and I the more readily adopt the construction as laid down in the case of Hunt v. the United States; because although in that case the question could not

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United States. v. Sturges et al.

have been carried to the Supreme Court of the United States; yet in the present case, should there be any dissatisfaction with the decision, it may be reviewed by the Supreme Court, and a construction settled which will be obligatory upon all the other Courts of the United States.

Upon the whole, therefore, the couse must be referred to a Master, to take and state an account between Butler and Sturges; showing the balance, if any, due to Sturges, and also to inquire into and state the responsibilities he is under for Butler; and the testimony taken upon the reference must be certified to this Court, to be used on the final hearing of this cause : and all matters of equity and further directions, are reserved until such hearing and the coming in of the report of the Master.

R. TILLOTSON, D. A. for the complainants.

H. WHEATON and E. Paine for the defendants, Burroughs and Sturges.

E. SLosson for the defendant, Butler.

United States v. John Willard et al.

The UNITED STATES v. John WILLARD ET AL.

If a plea which purports to answer all the breaches in the declaration is a good

answer to some of them only, the objection cannot be taken advantage of on

error, but on special demurrer only. Transcripts of accounts in the Treasury Department are written documents, and

their construction is matter of law. Witnesses acquainted with the mode of accounting at the Treasury, cannot be

called to give their opinion as to the effect of particular charges. If there is any obscurity which requires explanation, the officers of the Treasury should

be examined. As where sums were charged as advanced to a paymaster of the militia, and

witnesses were examined to prove that they believed, from the manner in which the charges were made, that a part of such sums were to pay the regu

lar troops, their testimony was held inadmissible. The duties and powers of a military officer of the United States are regulated

by law, and for the Court to determine. Monies were advanced to a militia paymaster, under the acts of Congress of

20th of January and 3d of March, 1813, and charged to him in account under the words “pay of the army:" Held, that these words were evidence of the appropriaiion out of which the advances were made, and not that such advances were to be disbursed to regular troops, but not to the militia.

ERROR to the District Court for the Northern District of New-York.

The plaintiffs brought an action of debt in the Court below, on a bond executed by Thomas P. Baldwin, Seth C. Baldwin, and John Willard, conditioned that the said Thomas P. Baldwin, who had been appointed District Paymaster of the militia of the state of New-York in the service of the United States, in the county of Saint Lawrence, should faithfully discharge the duties of his office, and regularly account when thereto required for all monies received by him as such paymaster, with the persons thereto authorized by the United States, and pay into their treasury such balance as, on a final settlement of his accounts, should be found due to them.

United States v. John Willard et al.

Different breaches were assigned in the declaration, charging Baldwin with not having paid the troops the monies he had received for that purpose; with not having accounted; and with not having paid the balance due the plaintiffs, on a final settlement.

Judgment by default was entered against Thomas P. Baldwin and Seth C. Baldwin.

The defendant, Willard, pleaded ten pleas. The eighth plea averred a faithful payment of all monies received by Baldwin. The ninth plea averred a like payment, and also that Baldwin, as such pay master, had never received more than 20,000 dollars, with which sum he had been charged, and on accounting with the officers of the Treasury, he had been credited with payments to that amount. The tenth plea averred, that Baldwin had, as such paymaster, received no more than 20,000 dollars, for which he had in like manner duly accounted. Each of these pleas purported to answer all the breaches in the declaration,

On the trial the plaintiffs offered in evidence a certified transcript of the account of Baldwin, audited at the Treasury, in which he was charged as follows: “On account of militia, 20,000 dollars.” “ Pay of the army, 29,732 dollars 42 cents." Both sums paid him, as District Paymaster of the 5th Brigade of New-York Militia, by Governor Tompkins. He was credited in said account for disbursements made to said brigade, including his own pay and emoluments for services rendered the United States in 1812 and 1813, as follows: “On account of militia, 20,000 dollars : Pay of the army, 21,391 dollars 59 cents: and for subsistence, forage, clothing, and contingencies, 6,858 dollars 33 cents;" leaving him indebted to the United States this sum, 1,482 dollars 50 cents."

The defence set up by Willard was, that Baldwin had received only the 20,000 dollars to pay to the militia, which he

United States v. John Willard et al.

had applied to that purpose; but that the residue of the money received by him was to pay the regular troops, which, so far as it had been accounted for as paid, appeared to have been applied to pay them; and that he, Willard, as surety, was not liable for any sums advanced to Baldwin, except such as were advanced to pay the militia.

To maintain this defence he called two witnesses, Elisha Jenkins and Robert Swartwout, who testified, that they were skilled in accounts, were quarter-masters during the war, and had seen accounts made out at the Treasury Department in relation to the quarter-masters' department: That they had examined the account in evidence, and should understand from it that 20,000 dollars only had been advanced to Baldwin to pay the militia, and that 29,732 dollars 42 cents had been advanced to pay the regular troops, and not the militia; and that the sum of 20,000 dollars had been disbursed in pay. ment of the militia ; and that the residue of the disbursements were in payment of the regular troops, and not the militia. They also testified, that Brigadier General Brown, of the militia, commanded said 5th brigade of militia in the county of St. Lawrence, and was commanding officer of the district : That said Brown would have had the command of all the regular troops in that county, unless there had been an officer there of the regular army of equal grade; and that it would have been Baldwin's duty, if so directed by General Brown, to pay the regular troops as well as the militia ; and that such regular troops would have been properly called and considered a part of said 5th brigade. They also stated, that a regiment of regular troops were stationed in said county during the period in question.

This testimony was objected to by the plaintiffs, but admitted by the Court, who charged the jury that they were to determine, from the account and the testimony offered, whether any monies had been advanced and paid on account of the re

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