McGill v. Armour.

shall be insufficient to pay the debts in full, he is required to make a tableau of the distribution and present it to the judge, with a prayer that he should be authorized to make the payments accordingly. But if the administrator or curator "neglect or refuse to file a tableau of the estate, and obtain the order of the judge to make payment, he can be compelled to do so on the demand of the interested, or in default thereof render himself responsible in his personal capacity." Kenner et al. v. Duncan's Executors, 3 Martin, N. S. 570.

This last procedure is as indispensable under the Louisiana law to authorize a proceeding against the executor or administrator to make him personally responsible, as an action and judgment are necessary at common law to charge him with a devastavit. And it does not appear from the petition in the case before us, that any order of the judge was obtained as required, or that any proceedings were had to compel the defendant to exhibit a tableau of distribution, by which it would appear whether the executrix had assets in her hands to pay the whole or any part of the debt of the plaintiff. This action was commenced at law, and the fact is alleged that a large amount of assets came into the possession of the defendant which have been misapplied, on which ground a personal liability is sought to be enforced against her. This the law does not authorize. An executor or administrator by the laws of Louisiana is considered, in this respect, as a syndic of an insolvent estate. In 6 Martin, N. S. 126, the court say, when a syndic has been legally appointed, and has taken charge of the estate intrusted to him, no individual creditor can sue him for a debt or interfere with his administration. He may be ruled to produce his bank-book, file a tableau of distribution, &c., but he should not be suffered to be harassed by suits brought by individual creditors, who allege or fear mismanagement on his part.

The judgment of the Circuit Court is affirmed, with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this case be, and the same is hereby, affirmed, with costs.

The United States v. Morgan et al.

THE UNITED States, PLAINTIFFS IN ERROR, v. THOMAS GIBBES MorGAN, THOMAS W. CHINN, MICAJAH COURTNEY, JOSIAH BArker, AND THE HEIRS and legal Representatives of John Davenport,

DECEASED.

Although a bill of exceptions is imperfectly drawn, yet if this court can ascertain the substance of the facts, and the questions on which the judge instructed the jury are apparent, it will proceed to decide the case.

Where a collector received treasury-notes in payment for duties, which were cancelled by him, but afterwards stolen or lost, altered, and then received by him again in payment for other duties, he is responsible to the government for the amount thereof.

So also he is responsible, to a certain extent, where treasury-notes were received by him in payment for duties, cancelled, but lost or purloined (without his knowledge or consent) before being placed in the post-office to be returned to the Depart And this is so whether the notes be considered as money or only evidences of debt by the Treasury Department.

ment.

But the extent, above mentioned, to which his responsibility goes is to be measured by a jury, who are to form their judgment from the danger of the notes getting into circulation again, the delay and inconvenience in obtaining the proper vouchers to settle accounts, the want of evidence at the Department that the notes had been redeemed, or from any other direct consequence of the breach of the collector's bond.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.

It was a suit brought upon a collector's bond against Thomas Gibbes Morgan, the principal, and Thomas W. Chinn, Micajah Courtney, Josiah Barker, and John Davenport, sureties. The bond was executed on the 14th of December, 1841, and recited that Morgan had been appointed collector of the customs for the district of Mississippi, in the State of Louisiana, on the 25th of June, 1841. It was in the usual form, with a. condition that Morgan " has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office." The penalty was $120,000.

The suit was brought on the 15th of December, 1843, and the breach is thus set out in the petition:

"Now these petitioners, by their attorney aforesaid, aver and expressly charge that the condition of said bond or writing obligatory has been broken in this, to wit, that the said Thomas Gibbes Morgan had not truly and faithfully executed and discharged, nor did said Thomas Gibbes Morgan continue truly and faithfully to execute and discharge, all the duties of the said office according to law. That the said Thomas Gibbes Morgan did, both before and after the time of the signing of said bond, and while he was collector as aforesaid, receive as said collector large sums of money belonging to petitioners, which he has in part only paid to petitioners, leaving the

The United States v. Morgan et al.

balance of $274,775.17, which was received by said Morgan as said collector, and while he was said collector, and which said balance said Morgan has refused to pay to petitioners, and yet retains the same in his possession, though often directed and requested by petitioners to pay the same to them. That said Morgan has not, since the first quarter of the year 1843, transmitted the returns of his accounts as said collector for settlement to the proper officer, as he is required by law to do, and for that reason petitioners are unable to specify the items of said balance, but they reserve the right, by amended petition or otherwise, of furnishing a detailed statement of said Morgan's account as said collector so soon as he shall transmit his quarterly returns as aforesaid; by means where of a right of 'action has accrued to these petitioners to have and recover the penalty of said bond or writing obligatory, which, though amicably requested, said obligors refuse to pay.

"That said petitioners also reserve the right of proceeding, by amended petition or otherwise, against the said Thomas Gibbes Morgan for any other or greater sum than the penalty of said bond herein sued for, even should the same exceed the said balance of $274,775.17, inasmuch as, from the omission and neglect of said Morgan to furnish said quarterly returns, petitioners are unable to finally adjust the accounts of said Morgan as said collector."

The defendants answered with a general denial, as in a plea of nil debet.

On the 27th of January, 1848, the cause came on for trial in the Circuit Court, and continued during that day, the 28th, and the 29th. The record stated the impanelling of the jury, the opening of the case by the district attorney, the fact that evidence was given on the part of the plaintiffs and on the part of the defendants. and the following verdict of the jury:

"Verdict in favor of the United States, viz.: For the balance acknowledged,

And commissions,..

Amounting to

$ 32,400.13 28,169.44

$60,569.57

"JOHN CASTELLANO, Foreman.

"New Orleans, Januaru 29th, 1848."

The verdict was recorded and judgment entered up on the 9th of February, 1848. But the record did not show, in any part of it, what the evidence was which was given either on the part of the plaintiffs or defendants. The following bills of exception refer to, but do not state it.

The United States v. Morgan et al.

"And afterwards, to wit, on the 4th day of February, 1848, the following bill of exceptions was filed by the United States district attorney:

"THE UNITED STATES V. THOMAS GIBBES MORGAN and others. In the United States Circuit Court in and for the Fifth Circuit and District of Louisiana.

"Be it remembered, that, at the December term of said court, on the trial of the above-named case, on this Saturday, the 29th day of January, in the year 1848, after the argument on both sides had been closed, and before the jury had retired, the attorney of the United States for the district aforesaid prayed the court to charge the jury as follows, to wit:—

"First. That T. G. Morgan, and the sureties on his official bond, were liable in law for the sum of $ 99,915.27, an amount of treasury-notes received by T. G. Morgan, collector, in payment of public dues, and lost by him, or stolen from him while in his possession, after they had been marked 'cancelled,' and before they were deposited in the post-office; for which purpose they had been put up in a bundle.

"And, on the day and date aforesaid, the attorney of the United States aforesaid further prayed the court to charge the jury,

"Second. That the defendant, T. G. Morgan, and the sureties on his official bond, were liable in law for the sum of $1,074.89, being the amount of two treasury-notes of five hundred dollars each, and the interest thereon; which notes were received in payment of public dues by T. G. Morgan, collector, stolen from his office, altered, and afterwards again received by him.

"The court refused to give the above charges as required, but charged the jury that, if they believed, from the evidence before them, that the treasury-notes in controversy were received by the defendant in payment of revenue, and that he took receipt upon the back of them when received from the persons paying them in, and cancelled them on the face of each according to law, and had them put into a bundle in the usual manner for transmitting them to the Treasury Department, and gave orders to the person who had been in the habit of delivering them at the post-office to deposit them there for transmission; and they were lost or purloined without the knowledge or consent of defendant, he is not answerable to the plaintiff for them. And the court further charged the jury, that if they believed from the evidence that the two treasurynotes, amounting to $1,074.89, were part of the treasurynotes so cancelled, and intended to have been forwarded to the Treasury Department, but had been subsequently so altered

The United States v.. Morgan et al.

without the knowledge or consent of the defendant, so as to make them appear to be genuine, and he afterwards received. them in payment of duties believing them to be genuine, he is not responsible to the plaintiff for them, but is entitled to a credit on the account of the plaintiff for that amount.

"Wherefore, the attorney of the United States aforesaid tenders this his bill of exceptions to the said refusal, and prays the same may be made a part of the record.

"THEO. H. McCALEB, [L. S.]
U. S. Judge.

"And afterwards, to wit, on the 5th day of February, 1848 the following bill of exceptions, taken by the counsel of the defendants, was filed:

"THE UNITED STATES v. THOMAS GIBBES MORGAN and others. In the United States Circuit Court, in and for the Fifth Circuit and District of Louisiana.

"Be it remembered, that, at the December term of said court, on the trial of the above-named case, on this Saturday, the 29th day of January, in the year 1848, after the defendants had introduced evidence to show that the item charged by the said T. G. Morgan in his account for the second quarter of the year 1842, for safe-keeping and disbursement of public moneys from 12th July, 1842, to 26th July, 1843, being commission thereon, amounting to the sum of $28,169.44, was reasonable and just under the circumstances, and which said item had been disallowed by the accounting officer of the Treasury Department; and after the argument on both sides had been closed, and before the jury had retired, the counsel for the defendants aforesaid requested and prayed the court to charge. the jury as follows:

"That the defendant, T. G. Morgan, when acting as collector of the customs, not being under the law a disbursing officer, and the payment of the drafts drawn on him by the Treasurer of the United States not being in the course of his duties as collector, he is entitled to a reasonable compensation for his risk and trouble in keeping and disbursing the money.

"The court refused to give the above charge as required, but charged the jury that, under the law, the defendants were not entitled to the credit and compensation by them claimed as aforesaid.

"Wherefore the defendants, by their counsel, tender this their bill of exceptions to the said refusal, and pray that the same may be made a part of the record.

"THEO. H. MCCALEB, [L. S.]
U. S. Judge."