Brown vs. Curtis. ing it, he contracted in equity a separate debt to the company, as treasurer, and not as partner; so that it falls within the authority of Ex parte St. Barbe, 11 Vez. 413.1 A decree must therefore be entered for the plaintiff. The parties, however, admit, that a final decree cannot now be entered; and, unless they agree, let it be referred to a master, to ascertain the fund in the hands of the defendant, and the rateable proportion due to the plaintiff. Decree accordingly. 1 See, also, 1 Hovenden's Supplement to Vezey, p. 650, note 6.—Ex parte Hargreaves, 1 Cox R. 440.—Ex parte Harris, 2 V. & Beam. R. 212.— Ex parte Young, 3 V. & B. 31, 34.-1 Cooke's Bank. Law, ch. 13. CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MAINE, MAY TERM 1830, AT PORTLAND. BEFORE Hon. JOSEPH STORY, Associate Judge of the Supreme Court. JOHNSON AND ANOTHER, IN Error, vs. UNITED STATES. If a collector of the customs cancels a bond for duties, without receiving payment of the amount of duties, in connivance with the debtor, the cancellation is void, and the bond may still be declared upon as a subsisting deed; for the cancellation is, in such a case, a flagrant violation of duty. A collector of the customs is not at liberty to receive any thing but money of the United States, or foreign gold or silver coin made current, in payment of duties.-If he receives a check on a bank in payment, it is at his own peril, and if the check is not paid, the bond is not discharged; a fortiori, it is not discharged by the receipt of a memorandum check. A collector, like other public officers, cannot bind the United States by any acts be yond, or contrary to, the authority given him by the laws. The receipt of a collector acknowledging payment is primâ facie evidence, but not conclusive, of the fact of payment. Upon a demurrer to evidence, the party demurring is bound to admit all the facts, which the evidence on the other side conduces to prove; and the Court on such a demurrer will infer them in his favour. Quare, whether a collector is not to all intents functus officio, as soon as a removal takes place by the appointment of another person in his stead? The government is not ordinarily bound by an estoppel. THIS HIS was a writ of error to the District Court of Maine, The original action was debt, brought by the United States upon a bond given for the payment of duties in the usual form. The declaration alleged, that the defendants, on the 8th of September Johnson et al. vs. United States. 1828, by their writing obligatory of that date, sealed with their seals, which having been lost and destroyed cannot be produced here in Court, bound themselves unto the United States, in the sum of ten thousand dollars, to be paid by the defendants on demand; yet, &c. The defendants pleaded, 1. Non est factum; 2. That they bring into Court here the said supposed writing obligatory, mentioned in the plaintiffs' declaration, and pray that the same may be read and enrolled here in Court; and the said supposed writing obligatory, and the condition thereof, are read and enrolled here in Court in these words, viz. [setting forth the bond and condition verbatim, the bond having still on its face the seals of the parties, but with a cancellation or cross over the names as follows, X ]; which being read and heard, they plead actio non, &c., averring a payment of the amount of the duties on the 12th of May 1829, (the condition of the bond being for payment of the duties on or before the 8th day of June 1829,) to the collector of the customs for the district of Bath, for the time being, and that the sum so paid "was then and there accepted by the said collector, as full and complete performance of said condition; and said collector delivered up said writing obligatory, to said defendants, cancelled and receipted according to the condition of the aforesaid writing obligatory; and this they are ready to verify; wherefore, &c." The United States replied, that the defendants did not pay said sum to the collector of the customs for the district of Bath, in manner and form, &c., offering an issue to the country, which was joined by the defendants. At the trial of these issues, there was a demurrer to evidence on behalf of the United States, and a joinder in demurrer by the defendants, upon which the District Judge gave a judgment in favour of the United States; and the present writ of error was brought to that judgment. The evidence, as stated in the demurrer to evidence, was as follows: Johnson et al. vs. United States. "The plaintiffs sue the defendants in a plea of debt, and declare on a bond, dated September the eighth, in the year of our Lord one thousand eight hundred and twenty eight, for ten thousand dollars, as lost and destroyed, as will be made to appear by reference thereto. And the defendants appear by their attorneys, and plead first, non est factum, and issue is joined thereon; and secondly, payment of the amount due on said bond, and the plaintiffs reply to said second plea, denying the payment, and issue is thereon joined; all which pleadings are at large to be considered as herein set forth; and thereupon a jury is duly empannelled to try the said issues, and the cause is opened to the court and jury by reading the pleadings; and the plaintiffs to maintain the issues on their part, called upon John B. Swanton, who being duly sworn, testified as follows:" “I, John B. Swanton, on oath declare and say, that I do not recollect of delivering a bond dated September 8, 1828, payable June 8, 1829, signed by Johnson Williams and others, to William King, the present collector at Bath; if not delivered to him, it was delivered to Mr. Williams, who paid it to me or my son; but my impression is, that the bond he paid me fell due in July. It was either handed to Mr. King or Mr. Williams. There has been some difference in the communications between the comptroller, Mr. King, and myself, in regard to bonds, and 1 cannot decide from the inspection of the authenticated paper exhibited to me, whether the bond inquired for is contained in the original account or not. I delivered a duty bond or bonds to the defendants, the last day of payment of which had not arrived, on the fifteenth day of May last. I think there was one or two. I took a check or checks on the Lincoln Bank in payment of the same. I cannot be positive whether I was in the office that day when the checks were given, or whether my son received them; nor whether they were signed by J. Williams, or J. Williams & Co.; whether they were memorandum checks or not, I cannot say. I considered memorandum checks best, as the cashier Johnson et al. vs. United States. would not be likely to pay them to a third person; I considered those checks perfectly good. My bondsmen to the United States became alarmed, and one of them called on me and I offered to give him security, either in money or notes. The checks taken in this case were sent to Mr. Williams, who sent me the notes of J. Williams & Co. for the amount of the checks, which I delivered to Mr. Riggs, the bondsman, as security. I should think the notes were delivered Riggs the last of June or first of July. The checks were either in my hands or in my son's, while I was absent from Bath. The note or notes taken, I cannot say whether made payable to me or to me and my order: I think it was payable to me or order, but am not certain. I think my son took the note or notes from Mr. Williams in my absence, in obedience to my directions. The note or notes were delivered Mr. Benjamin Riggs, but whether I endorsed it or them or not, cannot say. He has it or them now in his possession, and it was, I think, given to him by my son. The amount I believe, of my official bond, is ten thousand dollars. My last quarterly account was made up including the fifteenth day of May last. I cannot say when it was forwarded, but think it was a month or two after that day. My accounts are usually made up in the course of ten or twenty days after the quarter; that ending the thirty-first of March last, was rendered in April, and I have the comptroller's receipt of the same. The accounts rendered up to the thirtyfirst of March have been rendered both to the register and to the comptroller; the account since that period has not been rendered to the comptroller; but the one to the register has been. Owing to the difficulties about these bonds, the account has not been made up for the comptroller. I cannot give the balance on outstanding bonds on the thirty-first of March, but should think it exceeded fifty thousand dollars; the balance of my cash account at that time was between three and four thousand dollars; not far from four thousand dollars. I do not render a monthly account of bonds taken." |