168
FEDERAL REr0RTER,
vol. 44.
UNITED STATES V. YOUNG
et al.
(Oirouit OOtLrt, E. D. New York. November 18, '1890.) 1. EVIDIINOE-GOVERNMENT DOOUMENTg-CERTIFIED COPIES.
ThOUlth certilied copies of the books and accounts of the treasury department are by statute made evidence in favor of the government in actions altainst alleged delinquents, they are not conclusive, and, if a reply is made thereto, the case is to be deci1ied on all the evidence.
9.
INDIAN AGENTS-AoTION ON BOND.
In an action on an Indian agent's bond for failure to account for property alleged to have come into his bands, t,he government is not required to show that the agent has converted the property or proceeds thereof to his own use, but it may recover whatever loss it has sustained by his failure to account as required by his bond. Where the government has lost nothing by such failure to account, it can recover nominal damages only.
8. 4.
SAME.
6.
The burden of prOVing the amount of its loss is on the government. 5.. SAME-EvIDENOE. The fact that certain articles have been omitted from t,heagent's quarterly report is only prlmkL!acl.e proof that they have been lost to the government, and may be overcome by proof that they Were at the agency at that time. SAME.
SAME-BURDEN OF PROOF.
An Indian ap;ent who has given bond to faithfully discharge the duties of his oflice is not responsible for the negligence, error, or breaches of duty of doctors and clerks furnished by the government, unless by reasonable diligence he could have prevented such negligence, errors, or breaches of duty. Where the government fails to furnish the agent a clerk, he is responsible for the performance of the clerical duties of the agency in the best way practicable for him alone.
7.
At Law. Jease Johnaon and John Oakey, for the United States. AndrewJ.Todd and George G. Reynolds, for defendants. LACOMBE, Circuit Judge, (charging jury.) The defendant Young having been appointed an Indian agent, in accordance with the law, executed a bond, together with the other two defendants, that he would, while in office, carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account without fraud or delay for the same, and all public property which should or might come into his hands. This suit is upon that bond. The government claims that he did not carefully discharge thp. duties of his office, nor faithfully expend all public moneys; that he did not honestly account without fraud or delay for the same, and for all public property which came into his hands; but that, on the contrary, as such agent he did receive certain moneys and other property belonging to the United States, amounting in value to thQ sum of $1,486.10, which he did not faithfully expend and honestly account for without fraud or delay, or pay over to the United States, and which said sum still remains unpaid and unaccounted for. That is the claim in this suit. Now you have heard the phraseology of the bond, which is that he should carefully discharge the duties of his office, and faithfully expend the public moneys, and honestly account, etc. He does not discharge his whole duty
UNITED STATES V. YOUNG.
IG9
by being simply honest. He was bound also to carefully discharge the duties of his office as the same were prescribed to him by his superior officers. Especially was he bound to account for all public property which came to his hands, and to do so not only without fraud, but without delay. His term served, and his final returns being made, the government examined his accounts, and, finding that they did not on their face account for all the property which appeared to come into his hands, now comes into court to enforce the obligation of this bane!' By statute, a certified copy of the books and accounts of the treasury department is made evidence in favor of the government in support of any claim which it advances against a)1 alleged delinquent, and certifications of the books and accounts were introduced in evidence here. That is a convenient rule, and lays the burden where it belongs. Hno explanation at all is offered, judgment of course goes in accordance with the certified copies of the accounts. But the certified copies of the accounts, although evidence, are by no means conclusive evidence; and, if there is reply made to them, the case must be decided, not simply by the accounts, but by the evidence introduced in the case. Leaving out the cash items, (as to which you are directed to find in favor of the defendant,) these account"! make out on their face a prima facie case of failure to account in accordance with the obligation of the bond. This case the defendant undertakes to meet, and it is for you to determine if he has done so. In determining that question, there are certain principles of law governing the case which you must bear in mind. I have been asked by the defendants to charge with regard to them; and have added one or two statements of my own. These are the ciples which rou must bear in mind: Jilirst. The government i& not bound to show that the defendant has converted the property received, or the proceeds of property sold, to his own use. It is not bound under this bond to make out a case of fraud or conversion against him. Seeondly. A failure on the part of the defendant to conform to the obligations of the bond is sufficient to entitle the government to recover upon the bond whatever loss it has sustained by reason of such failure. If through such failure it has lost property or proceeds of property, l:e must respond for such a loss, although he did not himself appropriate the property. But the government can only recover such damages as it has in fact sustained by reason of the breach of his obligation under the bond. If the government has in fact lost no money l and lost no property, by reason of the defendant's failure, the recovery can only be for nominal damages. . The burden of proof is upon the plaintiff to show the amount of its loss. The fact that certain articles of property been left off from !tny of the quarterly reports, is not conclusive proof that they have been lost to the government. It is, however, prima facie proof of that fact. Any presumption which might arise from such omission-that is, such omission of property from the quarterly reports-may be overcome by satisfactory proof that the property was, in fact, at the agency at the
170
REPORTER,
time ()f.liuoh omission. If you believe that no money-or property has been. appropriated by the defendant Young, or lost to the plaintiff through bis fault, you, cannot award more than nominal damages to the plai:p.tHf. . Young is not responsible .for the negligence, errors, or breacQofduty of the doctors and clerks who were appointed and furnisbed, by the government, unless by the exercise of reasonable diligence he could have prevented. such negligence, errors, or breach of duty. WIwn the plaintiff failed to funlish the defendant with a clerk, the defendant was only responsible for the performance of the clerical duties of the agency in the best:way practicable for . . In le.llving this case to y.ou, I shall send with you a series of questions raised in, this way: DQYou find fot the plaintiff or tile defendant on these llepa,rate items? Opposite each item which is lettered here you wiUw;ritethe word or "defendant," as the case maybe. These items ,are, as follows: (a) "Sales to employes." Thereis·a·difference tween Ithe amount collected from the employes and the amount which the !lays should have been collected from them" That difference, ·thedefendll.nt says, arose from the fact that he. was not in all caSeS able to ascertain the cost price or the transportation price which he should put upon the. articles, th.e government at Washington' in. revising countshll,ving more full infotmation as to the costQf articles and the cost oftraJ;lspGr1:4tion than he. The second item (b) isfor "supplies fed out." That includes the hay of which you have heard. which lYas furnished to the starving stock. The thirditem (c) "supplies issued to1ndiansj"such as soap, flour, and so on. The fourth .artic]e Cd) relates to "shortages goods received." The fifth article ((1) relates to "dead animals,"among.which is included the horse, auda<>. .on. The next, V,) "schoo}s\lppliefl," as to which there has been some testimony. The next, (g,) "medical supplies." And, finally, (h,) theotheritems on property returns not accounted for. As to each of those items, you will return a separate answer, In case you find for the plaintiff as to either 9f these items, you are to indicate whether the verdiot as to s1.1Oh findis for nominal damages (six cents damages) or substantial damages. To iU'Ustrate, if, .all to a particular piece of property ,you find that it is dropped from the agent's last return, and has never turned up again, that it has disappeared so far as the government isoQncerned, is out of the government's hands, then the damages in that case are not to be nominal,but substantial. H,as to the saJIle article, however, you should And that itwas dropped from his return throughsQ.me oversight when his successor receipted for the property, but that the article was, in.fact, at the· ;time there, and did come to the hands ofhisauccessor or suc.Qe$!loJ.;s.,and has not been ,lost to the government, then the utmost Which 1;he ;gQvernment can ,clajm is nOlnina.l damages for,bl'eaQh of duty in the return. I think I pave."QQ!yer.ed,allthe'requests have. been.handedup·to mf;l bycounsel.I:hlWe:declined·the q.1i1est ,to, duect llover4ict inJaVQf(}f.thedeffllldanta, and give them an exceptiQn" J , Y i ' " , ' . ; ' j '!,' .
BUTTERFIEJ,D V. TOWN OF·ONTARIO.
171
The jury fOHnd for the defendant, as to the firstsixitemlJ, andfo'rthe plaintiff as to thelast two, awardi ng nOminal damages; the iteIns being as foqows: (a) Sales to empluyes. For defendant. (b) Supplies fed out. For defendant. (c) Supplies issu to Indians. ]!'or defendant 'd (d) Shortage in goods. For defendant. (e) Dead animals. For defendant. (f) Schoul supplies. For defendant. (g) Medical supplies. For plaintiff; nominal. (Ii) items of property on returns, and not accounted for. For plaintiff; nominal.
BUTTERFIELD
v.
TOWN OF ONTARIO.
(Circuit Court, N. D. New York. December 1, 18110.) INTJlREST C011PONS-SPLITTING CAUSB OJ' ACTION.
Interest coupons attached to negotiable bonds are distinct and independent promIses to pay the interest installments, and a recovery on one is. DO bar to a suit OD another, though the latter was past due when the ilrst action was brought.
,
At Law. L. H{Wolcott, for plaintiff'. S. D. Bentley, for defendant. to this action the defendant invokes the W ALUCE, J. Asa familiar doctrine ,that a.party cannot splitup,an entire and indivisible demand. and bring an action on the part of it, and a subsequent action on the other part, and that the judgment in the action first brought is a good bar to the second action. The plaintiff brought an action against the defendant to recover upon interest coupons of municipal bonds own.ed by him, and recovered judgment thereon. The present action is brought upon coupons of the same bonds which had matured when the former actioh' was broilght, and were then annexed to the honds. If the present suit were brought to recover interest installments payable by the ' terms ofa bond,according to the weight of authority, it would be no defense to the action that the plaintiff had bt'Ought a former action to recover installments due at later dates, and reco\'ered judgment therein. Sparhawk v. Wills, 6 Gray, 163; Bank v. Adams, 83 Mass. 28; fJulaneyv. Payne, 101 Ill. 328. When the' promise for the payment of interest installments in the bond is supplemented by promises in the form of negotiable paper, that circumstance that the obligee is at liberty to sell the dillerent promises, and transfer them to others, at his pleasure, before or after they mature; and it would be utterly unreasonaWetolldld that he. could, not do prejudicing his right to recover on one or more :oftbem in case others whil:h he has sold, though maturing li,er', Bhoulu'not have been sued upon. '!tis quite immaterial that they all represent. an indebtedness arising out of one' contraet'ora single traIiSJ: