United States v. John Willard et al. gular troops, and if they should be of that opinion, that Willard as surety was not liable therefor. The jury found for the plaintiffs on the seven first issues, and for the defendant on the three last. The cause came up to this Court on exceptions taken by the plaintiffs to the admission of the testimony of the defendants' witnesses, and the charge of the Court. R. TILLOTSON, D. A. for the plaintiffs. THOMPSON, J. THIS case comes up on a writ of error to the District Court for the Northern District of the state of New-York. It is an action of debt upon a bond in the penalty of fifteen thousand dollars, dated the 23d of December, 1812, with a condition reciting, that Thomas P. Baldwin had been appointed District Paymaster of the Militia in the state of New-York in the service of the United States, in the county of St. Lawrence of said state, and that he had received fortynine thousand seven hundred and thirty-two dollars forty-two cents of Daniel D. Tompkins, Governor of said state, for that purpose, and would as such paymaster receive more from time to time. The obligation to be void if the said Thomas should well and truly execute and faithfully discharge according to law, all instructions received by him from proper authority, his duties as paymaster aforesaid, and account, when required, for all monies received by him as paymaster aforesaid, and pay into the Treasury of the United States such balance as on a final settlement should be found justly due. In the declaration upon this bond, five breaches are assigned. Judgment by default has been entered against the two Baldwins, and Willard interposed ten pleas, upon which issues were joined. And on the trial a verdict was found in favour of the plaintiffs upon the first seven issues, and in fa United States v. John Willard et al. the vour of the defendants upon the three last. And upon trial, a bill of exceptions was taken, on the part of the United States, to the admission of certain testimony offered by the defendant in support of his three last pleas. Upon the argument in this Court, exceptions have been. taken to the sufficiency of the three last pleas, as well as to the admission of the testimony in support of them. If the exception to the pleas is well founded and available after verdict, there is no doubt but that the objection can be taken. here upon the writ of error. The whole record is before this Court, and if substantially erroneous in any part, the judgment must be reversed. I have had occasion frequently to notice, that records coming from the Northern District of this state are unnecessarily, and sometimes have appeared to me to be vexatiously, voluminous, containing, in some instances, nearly thirty pleas, which never could be necessary for any purpose of real defence, and was obviously an abuse of pleading; and I would respectfully intimate to that Court the propriety of applying some corrective to such a practice. The observation is not intended to apply in its full extent to the present case, although I cannot discover the least necessity for ten pleas, in order to let in all the defence which appears to have been set up. The only objection taken to the sufficiency of the pleas, is, that they only aver that the paymaster had duly paid out and disbursed all the monies received by him, but do not allege that he had accounted for the same. The exception is not true in point of fact, so far as respects the ninth and tenth pleas, which do set out specially, an accounting with the proper officer, for all monies received by him; and the eighth plea, although it does not allege any accounting, yet it is a plea to the whole declaration, purporting to be an answer to all the breaches, some of which do not allege as a breach of the condition of the bond, an omission United States v. John Willard et al. to account. The plea is, therefore, a good answer to some of the breaches, and if defective by reason of not extending to and meeting all the breaches, it is a defect which required a special demurrer, and cannot be taken advantage of on writ of error; and is, at all events, amendable, should a venire de novo be awarded. The result of the question now before this Court must, therefore, depend upon the validity of the exception taken to the admission of the testimony of Jenkins and Swartwout, as appearing upon the bill of exceptions. The question before the jury was, whether Thomas P. Baldwin had duly expended and accounted for all the monies he had received as District Paymaster of the militia of the state of New-York in the service of the United States, in the county of St. Lawrence of said state. It being contended by Willard, that he was security only for the faithful expenditure of monies received by the paymaster in that capacity, and to be expended for that object; and that, although he might have received money for other purposes, and failed duly to expend it, yet he, as security in this bond, was not accountable for such default. The correctness of this construction of the bond is not denied on the part of the United States. Nor is it denied on the part of the defendants, but that the paymaster has failed to account for all the monies received by him, and that a balance to a considerable amount now stands against him on the books of the Treasury of the United States. But it is said this balance arises out of monies received, and to be expended for other purposes than those mentioned in the bond of the defendant, and with which the defendant, Willard, has no concern. The real points of inquiry, therefore, were, how much money Thomas P. Baldwin had received in his capacity as District Paymaster, as described in the bond, and how much he had expended for the purposes therein mentioned. United States v. John Willard et al. To show this there was introduced, on the part of the United States, certain transcripts from the records of the Treasury Department, duly authenticated, containing a statement of the debits and credits appearing on the Treasury books against Thomas P. Baldwin: and to explain these accounts was the purpose for which the evidence was offered and received. The witnesses swore, that they had frequently seen accounts relative to the quarter-masters' department, as made out at the Treasury Department: That they had examined the accounts in question, and should understand from them that twenty thousand dollars had been advanced to Baldwin to pay the militia, and twenty-nine thousand seven hundred and thirtytwo dollars forty-two cents, advanced for the purpose of paying the regular army, and not the militia; and that they ; should understand from the accounts, that Baldwin had fully expended the twenty thousand dollars in payment of the militia, and that the residue of the disbursements with which he was credited, had been made in payment of the regular troops; and also, that General Brown would have had the command of all the regular troops in the county of St. Lawrence, unless an officer of the regular army, equal in grade to a brigadiergeneral, had been there; and that, under such circumstances, it would have been the duty of Baldwin, had he been so directed by General Brown, although not strictly within the line of his duty without such directions, to have paid the regular troops as well as militia in the county of St. Lawrence; and that such regular troops would have been properly called and considered a part of the 5th brigade; and that a battalion of riflemen of the regular army of the United States, commanded by Colonel Forsyth, was stationed during the period in question in the county of St. Lawrence. The testimony I think was improperly admitted. It was in the first place calling upon witnesses to explain the legal effect, operation, and construction of written documents. United States v. John Willard et al. This was the province of the Court. The mode and manner of drawing money and keeping the accounts at the Treasury Department, is regulated by law. And it was for the Court to say, with reference to such laws, what was the legal construction to be given to such accounts; and if any obscurity rested upon them that required or admitted of explanation, it should have been given by officers in the Treasury Department, where the accounts were kept and made out. The evidence did not relate to any professional matters, or questions of art, science, or trade, upon which the opinion of witnesses are sometimes received in evidence; nor are any facts stated upon which the opinion of the witnesses was given. And whether General Brown would have had the command of the regular troops in the county of St. Lawrence, in the absence of an army officer of equal grade, was a question of law, and for the Court to decide. And whether he had authority to direct Baldwin to pay the regular troops, was also a question depending upon the laws of the country, and upon which the opinion of the witnesses was not admissible. There was no evidence that, in point of fact, General Brown ever gave any directions to Baldwin to pay the regular troops, or that he ever had expended any money in such payment, except what is to be inferred from the accounts from the Treasury Department. And I cannot say that such conclusion is necessarily to be drawn from those accounts, when taken with reference to the laws regulating the Treasury Department, and making the appropriations out of which the monies were drawn. By the act of Congress of the 3d March, 1809, all warrants drawn by the Secretaries of the different Departments upon the Treasurer, must specify the particular appropriation to which the same is to be charged. And the money paid under such a 4 Vol. L. U. S. 220. |