Downs v. Kissam. 10 H. which is not provided for and regulated by congress, the parties, if any dispute arises, stand upon the same ground with other litigants as to the right of appeal; and the decree of the circuit court cannot be revised here, unless the matter in dispute exceeds two thousand dollars. This appeal, therefore, must be dismissed for want of jurisdiction. 14 H. 539. ALFRED C. Downs, Plaintiff in Error, v. JOSEPH KISSAM. 10 H. 102. An instruction to the jury, that "if a mortgage conveyed more property than would be sufficient to secure the debt, it was fraudulent," is erroneous, this not being even a badge of fraud. THE case is stated in the opinion of the court. Lawrence and Crittenden, (attorney-general,) for the plaintiff. * [ *108 ] M'LEAN, J., delivered the opinion of the court. This writ of error brings before us the judgment of the circuit court, held by the district judge for the southern district of Mississippi. An execution having been levied on certain slaves as the property of one James J. Chewning, at the instance of the defendant in error, which slaves were claimed by the plaintiff in error, an issue was joined, under the laws of Mississippi, to try the right of property. On the trial, a mortgage was given in evidence, executed by Chewning in 1839, long prior to the levy, to secure to the Railroad Bank of Vicksburg a debt of $130,000. This mortgage embraced all the slaves levied on, except one. Other mortgages were given in evidence, executed by Chewning, to secure the payment of several other debts. On the trial, the circuit court instructed the jury, that if "any one of the mortgages conveyed more property than would be sufficient to secure the debt provided for in the mortgage, such mortgage was fraudulent," and that the fact of more property being conveyed as aforesaid was a circumstance from which the jury might presume fraud. This instruction is erroneous. It is no badge of fraud for a mortgage, which is a mere security, to cover more property than will secure the debt due. Any creditor may pay the mortgage debt, and Hoyt v. United States. 10 H. proceed against the property; or he may subject it to the payment of his debt, by other modes of proceeding. The judgment of the circuit court is reversed, and a venire de novo awarded. JESSE HOYT, Plaintiff in Error, v. THE UNITEd States. 10 H. 109. A treasury transcript, which is a substantial copy of the quarterly returns of a collector of customs, revised and corrected by the accounting officers of the treasury, is evidence, under the act of March 3, 1797, (1 Stats. at Large, 512;) and it is no objection that they contain charges which are the aggregates of items rendered by the collector in his quarterly abstracts, references to those abstracts being made, and they not having been called for at the trial. The acts of congress providing for and limiting the compensation of collectors of customs, examined, and their effect considered. These acts are: March 2, 1799, § 2, (1 Stats. at Large, 706;) April 30, 1802, § 3, (2 Stats. at Large, 172;) March 7, 1822, §§ 7, 9, (3 Stats. at Large, 694, 695;) July 7, 1838, § 3, (5 Stats. at Large, 264;) 5 Stats. at Large, 431, 432, §§ 2, 7, (6 Stats. at Large, 815,) — An act for the relief of Chastelain and Ponvert, July 21, 1840. The 89th and 91st sections of the collection act of 1799, (1 Stats. at Large, 695, 696,) do not make distributable the duties paid in case of seizure of property and its release on bond. The collectors of customs are prevented by the act of March 3, 1839, § 3, (5 Stats. at Large, 349,) from obtaining any allowance for accepting and paying drafts by the secretary of the treasury, even if such service could be considered beyond the pale of their official duties. THE grounds of the different claims which came under the consideration of the court, and the questions which arose thereon, sufficiently appear in its opinion. Evans and Walker, for the plaintiff. Crittenden, (attorney-general,) contrà. [*132] * NELSON, J., delivered the opinion of the court. This is a writ of error to the circuit court held in and for the southern district of New York, in a suit brought by the United States against the late collector of the port of New York, to recover a balance claimed in the settlement of his accounts. The defendant had been collector from the 29th of March, 1838, to the 2d of March, 1841, and, on a final adjustment of his accounts, at the close of his official term, a balance against him was found due by the accounting officers of the treasury of $216,048.07. The counsel for the plaintiff produced on the trial four treasury transcripts, containing a statement of his accounts with the government for the whole period of his term, and which resulted in the balance above stated. Hoyt v. United States. 10 H. These transcripts were objected to, as not competent evidence against the defendant of the balance therein found due, within the meaning of the act of congress providing for this species of proof. Act of 3d March, 1797, 1 Stats. at Large, 512. The second section of the act provides that, in every case of delinquency where a suit has been brought, a transcript from the books and proceedings of the treasury, certified by the register, and authenticated under the seal of the department, shall be admitted as evidence upon which the court is authorized to give judgment. It has been already determined, under this act, that an account stated at the treasury, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified according to its provisions; and that the statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In such cases, the officers have official knowledge of the facts stated. United States v. Buford, 3 Pet. 29. That when moneys come into the hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the department. Ibid. It was held in the United States v. Buford, that a treas[* 133] ury * transcript was not competent proof against the defendant in respect to moneys coming into his hands from a third person, not in the regular course of official business; and that the evidence on which the statement of the account was founded should have been produced. See also United States v. Jones, 8 Pet. 375. In the case before us, the several items of account in the transcripts arise out of the official transactions of the defendant, as collector, with the treasury department, and were founded upon his quarterly and other accounts, rendered in pursuance of law and the instructions of the secretary. They were substantial copies of these quarterly returns, revised and corrected by the accounting officers as they were received, and with copies of which the defendant had been furnished in the usual course of the department. They present a mutual account of debit and credit arising out of his official dealings with the government, in the collection of the public revenue. We can hardly conceive of a case, therefore, coming more directly within the act of congress as expounded by the cases referred to. In the case of the United States v. Eckford's Executors, 1 How. 250, a transcript, corresponding with the one in question, was held to be competent evidence of the balance of the account. The point was presented in a certificate of a division of opinion of the judges. Hoyt ". United States. 10 H. It has also been objected to these transcripts, that some of the items included contain a charge against the defendant in gross, such as the aggregate amount of the duty bonds, and of duties accruing within the quarter, reference being made to the abstracts for the particular items composing each amount. This objection was not specially pointed out at the trial, as the one made then was to the admissibility of transcripts generally. If made then, it might have been removed by the production of copies of the abstracts. They were called for, in the course of the trial, in respect to the item of bonds in the quarterly account of the 31st March, 1838, and produced. This affords a full answer to the objection. But we do not intend to admit that it would have been available, if made at the proper time. We agree, that a transcript of a gross balance against the officer would be objectionable, as the act of 1797 obviously contemplates, to some extent, a detailed statement of the accounts between him and the government. It must be "a transcript from the books and proceedings of the treasury," which, doubtless, will usually present such a statement. The amount of the detail, or degree to which the particulars of the account should be carried, * must necessarily be left open to the ex- [134] ercise of some discretion, as there can be no fixed rule by which to determine it. The necessity of greater particularity than is exhibited here in the several transcripts, to guard the officers against surprise, and afford an opportunity for explanation, is not very apparent; for they contain the several items making up the quarterly returns of the party himself, with the addition of such errors as the accounting officers may have detected in their examination, and with all of which he had been furnished. This If the accounting officers, therefore, have fallen into error, the officer has had ample time and means for inquiry and correction. is true as it respects each quarterly account rendered. Besides, by the fourth section of the act of 1797, no claim for an equitable credit can be admitted, upon the trial, but such as shall appear to have been presented to the accounting officers for examination, and by them disallowed, except in case of vouchers, which the officer was not before able to procure, or was prevented from exhibiting, by absence or unavoidable accident. As a general rule, therefore, every item of the account that can be the subject of litigation at the trial, on the production of a transcript, must have been a matter of dispute at the treasury department, and, of course, presenting nothing new or unexpected to either of the parties. Hoyt v. United States. 10 H. If the transcript contains the accounts, debits, and credits, as acted upon at the department by the accounting officers, it would seem to be sufficient as it respects the particulars of the account required by the act. The court is of opinion, therefore, that the several treasury transcripts given in evidence were properly admitted. The comptroller, in the adjustment of the accounts, rejected nineteen items that were claimed by the defendant as legal or equitable credits, which, in the aggregate, exceeded the amount of the balance reported against him. All of them, except four, were either allowed by the court or submitted to the jury as a matter of fact involving no principle of law, and, of course, require no further notice. Among the items rejected is a charge of $36,712.71, for fees payable by persons engaged in trade and navigation, for certain services performed by the collector at each port, such as giving permits to land goods, clearances, bills of health, &c., and which were chargeable under the compensation act of 2d March, 1799, 1 Stats. at Large, 705, § 2. These fees were divided between the collector, na val officer, and surveyor, in districts in which these several [* 135] officers are appointed. The collector in the district of New York was also entitled to a commission of one quarter of one per cent. on all moneys received on account of duties on goods, or tonnage of vessels. By an amendment of this act, April 30, 1802, 2 Stats. at Large, 172, § 3, it was provided, that whenever the annual emoluments of any collector, after deducting the expenses incident to the office, shall amount to more than $5,000, the excess shall be accounted for, and paid into the treasury. The act was not to extend to fines, forfeitures, and penalties, a share of which the collector was entitled to, under the twentieth section of the act of 2d March, 1799, 1 Stats. at Large, 706. The act of 7th March, 1822, reduced this maximum to $4,000 per annum, and the commission to one sixth of one per cent. on the moneys received. 3 Stats. at Large, 694, 695, §§ 7, 9. It is insisted by the defendant, that the limitation in the aforesaid acts does not refer to or embrace the fees allowed to him under the act of 1799; and that the collector was still entitled to apply them to his own use. At the date of the act of 1802, the compensation of the collector was derived from three sources: 1. Fees allowed for the services already referred to; 2. Commissions on the duties received; and 3. A share of the fines, penalties, and forfeitures. The emoluments of the office were dependent upon the receipts from these sources; and the |