plaintiffs had made out a prima facie case, the fing, but fictitious case the plaintiffs had preplaintiffs' attorney substantially obtained all sented. the charges he asked for; the court had already To this view of the case, our first answer is, permitted the treasury transcript to be given that, if this position has any foundation in law, in evidence to the jury, as being in judgment then it was peculiarly a case in which the esof law sufficient to establish the plaintiffs' toppel should have been pleaded. It was not an right; the jury of necessity regarded them in estoppel in pais, coming up incidentally as evithat light. But the defendants were allowed to lence. The supposed matters of estoppel were impeach the transcripts for illegality and fraud. the treasury transcripts presented by the plainIt was equally regular to impeach them for any tiffs as their ground of action, and if regarded omission or mistakes, and thus they were by them as records conclusive on the defendcompelled to yield the influence of the rebutants, they should have pleaded them specially ting proofs. in their replication, and not joined the defendIn view of the whole case, we are satisfied it ants in an open and general issue, and then obwill be seen that the said Boyd had not any jected that the defendants should not prove their money of the United States at or after the ex-issue as joined. If, then, it be a case of estoppel, ecution of the bond, but that the same had all been paid into the treasury. it should have been so pleaded. 6 Munford, 120; 2 A. K. Marshall, 143; 3 Dana, 103; 2 J. R. 382; 6 Pick. 364; 14 Mass. 241; 2 Blackford, 465; 2 Penn. 492. But we say this is not an estoppel, because neither matter of deed or of judicial record. 18 J. R. 490; 3 Wendell, 27. That his entire defalcation arose from his fraudulently and illegally issuing land certificates in his own name, and in the name of others, without being paid the purchase money, that they ought to be set aside, and the land considered as yet belonging to the government. *And is not an estoppel, because there [*46 That it was a fraud in Garesche to conceal was no mutuality of obligation between the from the sureties the fact of Boyd's defalca-parties to the matter of estoppel. The United tion, and that the judgment of the court below States were not concluded by Boyd's returns, ought not to be reversed, but the executive gov-neither by the account as stated, nor the fictiernment left to the discharge of its duty in tious sales of the public lands, thereby reportsetting aside those illegal entries and certifi-ed to have been sold. Estoppel must be ̄mucates. tual. 2 J. R. 382; 3 Randolph, 563. 45*] *Synopsis of the Argument of John Henderson for Defendants. The bill of exception filed in this case is of that form which has heretofore met, and we think deservedly, the reprehension of this court. It comprises, at length, all the testimony on both sides, and extends to 161 pages, being all the record, less 17 pages. The various parts of the testimony is chiefly objected to, with a generality of exception, which presents no specific matter of law for the consideration of this court, but devolves it upon this court to sift depositions at length, to ascertain if there be any exceptionable matter to justify the general objections taken. We should feel ourselves justified, did we think our defense made it necessary, to object that most of this extended volume of testimony is not before this court on any sufficient points of exception as to entitle it to be reviewed by 'this court, under the common law rules of proceeding, as a court of error. But, waiving all such objections, we shall meet the plaintiffs' case, regardless of this deficiency. Boyd's returns were no stronger evidence than receipts, which never work an estoppel. 12 Pick. 557. But, so far from the plaintiffs' proof from the Treasury Department being "conclusive,” a part, if not all of it, was clearly inadmissible as evidence at all. The account showing settlement and balance struck by the Treasury Department against Boyd was no sort of legal proof. It resulted from no accounts and charges kept in the Treasury Department, and included no charge for money advanced or paid out of the department, but was only the result of certain treasury officers, in stating Boyd's account from reported returns, and data furnished by himself. Now, the rule is settled in the case of United States v. Buford, and in other cases, that in a suit for money which came to the hands of a collecting officer in pais, and not received from the Treasury Department, a treasury statement, in such case, is no evidence of the debt. 3 Pet. 29; 6 Pet. 202; 5 Pet. 292; 8 Pet. 375. The papers certified from p. 17 to 22 of the record, are of this description, and should not have been admitted in evidence at all. Gilpin's D. C. R. 47. In aggregating the general objections of the plaintiff's to the five several depositions of the defendants, that they were "incompetent" testimony, and with intimations that plaintiffs' case rested on "conclusive" proof, we can reduce these objections to no other legal posi- The accounts certified from p. 48 to 55 as tion, than that the defendants were estopped "true copies of the originals on file in said from denying the plaintiffs' case by any proof department," are, perhaps, by another proviwhatever. For surely the defendants' testimony sion of law than that which provides for certiwas pertinent to the issue, and it is not ob-fied transcripts of accounts from the treasury jected that the deponents were not competent books, admissible as secondary proof of the and disinterested witnesses. Nor can it be facts contained, but not necessarily of a debt doubted but the jury rightly estimated this due, and certainly as open to correction or testimony as disproving the plaintiffs' case. disproof, as accounts and receipts ever are, and Reduced, then, to a legal elementary principle, having in no sense whatever any judicial the sum total of these objections is, that the verity. See cases cited above. defendants were concluded and estopped in law from showing the truth against the fair seem The plaintiffs' testimony shows that the alleged balance of account due from Boyd was not of money received after execution of de- | him. 11 Pet. 86; 7 Cranch, 206; 7 Wheaton, fendant's bond, but is carried forward as "an 356. amount remaining on hand per last return," The objections to the charges and refusal to from the months of February or March pre-charge by the court below, we regard as ceding. The facts, then, which we have assumed as our right to prove are, that this reported balance was a mere fiction of figures, without any reality; and that the fiction was made to figure as fact, by a device, palpably violative of the laws of the United States, in selling the public domain on credit, and charging up the price as cash received. We have answered, that it was our province to show, and by our proof we have shown, to the satisfaction of a court and jury, that the balance of money on hand, as reported by 47*] Boyd, since the execution *of defendants' bond, was a fiction. 5 Pet. 373; 8 Pet. 399. We have shown by our proof, too, that this balance arose from sales made of the public land on credit, and for which no money was received. Can this court assume, for a moment, this may be lawfully done by the mere unmeaning device of a receiver, charging up his account sales, that the price was received, when in truth it was not. The law says credit shall not be allowed for the purchase money on sale of the public lands after 1st July, 1821. Land Laws, 324. That lands subject to entry shall be paid for "at the time of making such entry.' Land Laws, 324. Is there any equitable license for the land officer, or this court, to dispense with the positive requirements of this law? wholly groundless. The court charged the full strength of the plaintiff's' case, and the other points vindicate themselves on reading. But if this court should possibly find error in the trial, then we fall back upon the first error in the judgment of the court below on the pleadings, and demand the judgment of this court on the *plaintiffs' demurrer [*48 to defendants' first rejoinder, in which we think there is manifest error in the court's judgment against us. John Henderson, Attorney for Defendants. Mr. Justice Nelson, after reading the statement in the commencement of this report, proceeded to deliver the opinion of the court: When this cause was formerly before the court, involving a question arising out of the pleadings, it was held that the condition of the bond was prospective, and subjected the sureties to liability only in case of default or official misconduct of the principal occurring after the execution of the instrument; and that if intended to cover past dereliction of duty, it should have been made retrospective in its language; that the sureties had not undertaken for past misconduct. 15 Pet. 187. The case is now before us, after a trial on the merits, and the question is, whether or not any breach of duty has been established which entitled the government to recover the amount in question, or any part of it, against the sureties within the condition of the bond as already expounded. Now, we maintain, the provisions and requirements of this law rest in a superior and Since the verdict rendered under the instrucpervading public policy, and, as such, its high | tion given by the court below, we must assume commands are in no sense directory, but man- that the whole amount of the $59,622.60, of datory and peremptory. Laws founded in which the receiver is in default to the governpublic policy have no flexible equities author-ment, accrued against him in consequence of izing any countenance to be given by the courts the entry of public lands in his own name, and to their violation. Nor can it be tolerated, to meet any particular act of the citizen, that their known violation should be judicially covered up by an estoppel. Such are the English shipping acts, and so of ours; and of like high statutory policy is the system of our laws for the sale of public lands. 1 Story's Equity, sec. 177. In this case, then, the court will declare it to be the duty of the Land Department of our government to disregard these affected and unreal sales, consider them as void, and resume the title to the government, as unaffected by the acts now attempted to be validated; and such, in effect and principle, has been the previous decisions of this court. No title is valid if acquired against law. A patent issued against law is void. 2 Howard, 318; 13 Pet. 511. Lands not subject to sale by law do not pass, without a register's certificate and payment; and the title of the United States is not diverted or affected thereby. 13 Pet. 498. So, too, 11 Wheat. 384; 9 Cranch, 87. The objection to Boyd as a witness is not well taken. He was exonerated by the parties for whom he deposed, for both debt and costs, and had, therefore, no interests disqualifying in the name of others, without the payment of any money in respect to the tracts entered in. his own name, and without exacting payment of others, in respect to the tracts entered in their names; and all happening before the 15th June, 1837, the date of the bond. So the jury have found. The fraud, thus developed, was accom. plished at the time by means of false certificates of the receipt of the purchase money by the receiver, which were given by him in the usual way, as the entries for the several tracts of land were made at the register's office, and also by entering and keeping the accounts with the government the same as if the money had been actually paid as fast as the lots were entered. The monthly or quarterly returns to the proper department would thus appear unexceptionable, and the fraud concealed until payment of the balances should be called for by the government. According to the finding of the jury, therefore, the whole of the money, of which the receiver is claimed to be, and no doubt is, in default, and for which the sureties are and ought to be made responsible, were not only not in his hands or custody at the time of the execution of the bond, but, in point of fact, never had been in his hands at any time before or since. No part of it was ever received by anybody. The whole of the account charged 49*] was *made up by means of fabricated certificates of the receiver, and false entries in his returns to the government. The Act of Congress of the 24th of April, 1820, sec. 2 (3 Statutes at Large, 566), provides "That credit shall not be allowed for the purchase money on the sale of any of the public lands which shall be sold after the first day of July next; but every purchaser of land sold at public sale thereafter shall, on the day of the purchase, make complete payment therefor; and the purchaser at private sale shall produce to the register of the land office a receipt from the Treasurer of the United States, or from the receiver of public moneys of the district, for the amount of the purchase money on any tract, before he shall enter the same at the land office." The acts of the receiver, out of which the defalcation in question arose, were in direct violation of this provision of law, and constituted a breach of official duty, which made him liable at once as a defaulter to the government, and would have subjected his sureties upon the official bond, if one had been given, covering this period. It was doubtless by some accident that the bond was omitted, as it will be seen by reference to the Acts of Congress, 3d March, 1833, sec. 5 (4 Statutes at Large, 653), and 3d of March, 1803, sec. 4, and 10th of May, 1800, sec. 6 (2 Statutes at Large, 75, 230), that a bond with sufficient sureties should have been given by the receiver before he entered upon the duties of his office. It is clear, therefore, that the defalcation had accrued, and Boyd had become a defaulter and debtor to the government before the present sureties had undertaken for his fidelity in office, unless we construe their obligation to be retrospective, and to cover past as well as future misconduct, which has already been otherwise determined. distinct and separate from his own private affairs. It is only upon this view, that he can be allowed to purchase the public lands at all, consistently with the provisions of the act of Congress. It has been contended that the returns of the receiver to the Treasury Department after the execution of the bond, which admit the money to be then in his hands to the amount claimed, should be conclusive upon the sureties. We do not think so. The accounts rendered to the department of money received, properly authenticated, are evidence, in the first instance, of the indebtedness of the officer against the sureties; but subject to explanation and contradiction. They are responsible for all the public moneys which were in his hands at the date of the bond, or that may have come into them afterwards, and not properly accounted for; but not for moneys which the officer may choose falsely to admit in his hands, in his accounts with the government. The sureties cannot be concluded by a fabricated account of their principal with his creditors; they may always inquire into the reality and truth of the transactions existing between them. The principle has been asserted and applied by this court in several cases. If the case had stood upon the first instruction of the court below, and to which we have already adverted, there would be no difficulty in affirming the judgment. But the second instruction was erroneous. The court charged, that if the jury believed from the evidence that fraudulent design existed, on the part of Boyd and Garesche, to conceal the fact of the former's defalcation from the sureties until they had executed the bond, and that such design was communicated to the Secretary of the Treasury, and his answer received before the execution, in that case the bond would be fraudulent and void, and the sureties not liable. Now, in the first place, there is no evidence in the case laying a foundation for the charge of fraud in the execution of the bond, in the view taken by the court as matter of fact, and therefore the instruction was improperly given. And, in the second place, if there had been, in Whether a receiver can purchase the public lands within his district in his own name, or in the name of others for his benefit, while in office, consistent with law and the proper discharge of his official duties, it is not now neces-asmuch as the condition of the bond is prospecsary to express an opinion. The register is expressly prohibited (Act of Congress, 10 May, 1800, sec. 10, 2 Statutes at Large, 77), and it would have been as well if the prohibition had included the receiver. tive, any fraud in respect to past transactions not within the condition, which is the only fraud pretended, could not, upon any principles, have the effect of rendering the instrument null and void in its prospective operation. We may add, also, that, so far as the agency of Garesche was material in making out the allegation of fraud for the purpose of defeating the action, the proof was altogether incompetent. His acts and declarations for the purpose were admitted without previous evidence of his appointment as agent; and also secondary proof of the contents of a pretended letter of appointment, without first accounting for the nonproduction of the original. One thing, however, is clear, and which is sufficient for the purpose of this decision, the act of Congress, forbidding the sale of the public lands on credit, makes no exception in favor of any officers. He must purchase, if he purchases at all, upon the terms prescribed. If this is impracticable, it only proves that the duty of the receiver is inconsistent and incompatible with the duty of the purchaser, which might amount to a virtual prohibition. But, if otherwise, and the receiver allowed to purchase, the money must be paid over, as in the case of other purchasers, and deposited at the time of the purchase with the other moneys received and held by him in trust for the gov- The counsel for the defendants ask the court ernment. The public moneys in his hands to revise the judgment of the court below, ren50*] constitute *a fraud, which it is his duty dered upon the demurrer to the rejoinders of to keep, and which the law presumes is kept,' the defendants to the plaintiffs' amended repli *Before a party can be made respon- [*51 sible for the acts and declarations of another, there must be legal evidence of his authority to act in the matter. cation, overruling the demurrer, insisting that | a motion is made to dismiss it for want of the rejoinder was good, and that judgment jurisdiction in this court. should have been rendered for the defendants. It is unnecessary to state, at length, the proceedings in the State courts, because it is evident that the decree of the Supreme Court of the State was not a final one. And as the case must be dismissed on that ground, the other objections to the jurisdiction of this court which were taken in the argument need not be The answer to this is, that the withdrawal of the demurrer, and going to issue upon the pleading, operated as a waiver of the judgment. If the defendants had intended to have a review of that judgment on a writ of error, they should have refused to amend the plead-examined. ings, and have permitted the judgment on the demurrer to stand. Another ground upon which the judgment must be reversed is, that a judgment for costs was rendered against the plaintiffs. The United States are not liable for costs. Some other points were made in the course of the trial, but it is unimportant to notice them. The judgment of the court below reversed, with a venire de novo. It appears from the record, that the defendants in error obtained a decree in the District Court of Louisiana for the Ninth Judicial District, for a perpetual injunction, staying all further proceedings upon an order of seizure and sale of certain lands and other property mentioned in the proceedings, which before that time had been issued by the said District Court upon the petition of the present plaintiff's in error. From this decree an appeal was taken to the Supreme Court of the State; and at the hearing in that court it was decided that the present defendants in error, in whose favor the injunction had been granted, were entitled to This cause came on to be heard on the tran-relief for a large portion of their claim. The script of the record from the Circuit Court of the United States for the Southern District of Mississippi, 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 cause be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo. Order. THIS decree specifies sundry items which ought to be deducted from the claim of the plaintiffs in error, amounting to a very large sum; but states that the evidence before the court did not enable it to decide finally upon the rights of the parties, and especially upon the amount which the defendants in error were bound in equity to refund to the plaintiffs. And the court, therefore, decreed that the judgment of the District Court, granting a perpetual injunction, should be avoided and reversed; and remanded the case to the District Court for further proceedings in conformity to the opinion expressed in this decree. This is the decree brought here by writ of error. It is evidently not a final one, and the writ of error must, therefore, be dismissed. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, holding sessions for the Western District of Louisiana, and was argued by counsel; on consideration whereof, and it appearing to the court here that the judgment of the said Supreme Court is not a final one, it is thereupon now here ordered and adjudged by this court, that this writ of error be, and the same is hereby dismissed for the want of jurisdiction. HIS case case was brought by writ of error, under the 25th section of the Judiciary Act, *MORGAN MCAFEE, Plaintiff in Error, [*53 from the Supreme Court of the State of Louisiana. 52*] *Mr. Crittenden moved to dismiss the writ for want of jurisdiction in this court. Mr. Chief Justice Taney delivered the opinion of the court: This case is brought here by writ of error to the Supreme Court of the State of Louisiana; and NOTE. As to what is a "final decree" or judg ment of State, or other court, from which an appeal lies, see notes to 5 L. ed. U. S. 302 4 L. ed. U. S. 97; 49 L. ed. 1001; 62 L.R.A. 515. V. THOMAS C. DOREMUS, Evidence of protest, bills and notes in Louisiana, action against drawers and indorsers jointly-several pleas-nol. pros. as to drawer-Mississippi law adopted by rule of District Court. By the laws of Louisiana, a notary is required to record in a book kept for that purpose, all p:otests of bills made by him and the notices given to the drawers or indorsers, a certified copy of be reversed, annulled, or set aside for want of which record is made evidence. form. Under these statutes, a deposition of the notary, giving a copy of the original bill, stating a de- "Sec. 4. Be it further enacted, that new mand of payment; a subsequent protest and no-trials shall alone be granted to such defendants tice to the drawers and indorsers respectively, is as the verdicts may have been wrongfully rengood evidence. dered against; and judgments shall be entered against all the other defendants in pursuance of the verdict. The original protest must be recorded in a book. Its absence at the trial is, therefore, sufficiently Where a joint action against the drawers and accounted for. indorser was commenced under the statute of Mississippi (which statute this court has heretofore, 16 Peters, 89, held to be repugnant to an act of Congress), the plaintiffs may discontinue the suit against the drawers and proceed against the indorser only. THIS HIS case was brought up by writ of error from the District Court of the United States for the Northern District of Mississippi. On the 8th of December, 1839, the following bill of exchange was drawn: $4,000. Locopolis, Miss., Dec. 8th, 1839. Ninety days after date of this my first of exchange (second of same tenor and date unpaid), pay to the order of Morgan & McAfee, four thousand dollars, value received, and charge the same to account of your obd't servants. Clymer, Polk & Co. Messrs. Keys & Roberts, New Orleans. The firm of Clymer, Polk & Co., consisted of Isaac Clymer, Benjamin C. Polk, William C. Ivins, and Hiram Clymer. McAfee indorsed it, and it came to the hands of the defendants in error, merchants and partners in New York, trading under the firm of Doremus, Suydams & Nixon. When the bill became due it was not paid, and was protested under the circumstances set forth in the first bill of exception. In May, 1842, Doremus, Suydams & Nixon brought a suit against the four makers and also against McAfee, the indorser. The action was a joint one, as required by a statute of Mississippi, passed on the 13th of May, 1837, which was as follows: "Section 1. Be it enacted by the Legislature of the State of Mississippi, that in all actions founded upon bills of exchange and promissory notes, the plaintiff shall be compelled to sue the drawers and indorsers living and resident in this State in a joint action; and such suit shall be commenced in the county where the drawer or drawers reside, if living in the State; and if the drawer or drawers be dead, or reside out of the State, the suit shall be brought in the county where the first indorser resides. "Sec. 2. Be it further enacted, that in all cases where any drawer, acceptor, or indorser shall have died before the commencement of 54*] *the suit, a separate action may be brought against the representatives of such drawers, indorsers, and acceptors. "Sec. 5. Be it further enacted, that the clerk shall issue duplicate writs to the several counties where the various defendants may reside, and shall indorse on all executions the names of the drawers and indorsers, particularly specifying the first, second, and third indorsers. "Sec. 6. Be it further enacted, that it shall be the duty of the sheriff, in all cases, to make the money on the executions out of the drawer or drawers, acceptor or acceptors; and in no case shall a levy be made on the property of any security or securities, indorser or indorsers, unless an affidavit from some credible person be made and filed among the papers in the case, setting forth that the principal or principals have no property in this State, out of which the plaintiff's money and costs can be made; and in such event the plaintiff may proceed with the executions against the defendants next liable, and so on until his executions be satisfied. "Sec. 7. Be it further enacted, that no sheriff, or other officer, shall take more than one forthcoming bond, in any case, for the same cause of action. "Sec. 8. Be it further enacted, that any plaintiff shall have the right to discontinue his suit against any one or more of the indorsers or securities, that he may sue in any joint action, before verdict, on payment of the costs that may have accrued by joining said defendant in such suit. "Sec. 9. Be it further enacted, that in all suits brought under the provisions of this act, the defendants shall not be allowed to sever in their pleas to the merits of the action, and no plea of abatement shall be allowed to be filed in any cause, unless affidavit be made of the truths of the facts pleaded in the plea of abatement. "Sec. 10. Be it further enacted, that if any plaintiff or plaintiff's shall cause to be levied an execution on any security, or their indorsers or their property, when the principal has sufficient property in this State to satisfy such execution, the party so offending shall be *deemed a trespasser, and shall be liable [*55 to an action from the party aggrieved, and exemplary damages shall, in all such cases, be awarded by the jury trying the same. Approved, May 13, 1837.” This statute was, in part, adopted by a rule of court in 1839, as follows: "Sec. 3. Be it further enacted, that the court shall receive the plea of non assumpsit "Rule XXX. The practice and proceedings and no other, as a defense to the merits, in all in action at law, by the laws of this State, and suits brought in pursuance of this act; and all the rules of practice for the government of the matters of defense may be given in evidence courts of law, made by the late Supreme Court. under the said plea. And it shall be lawful where not incompatible with the laws of the for the jury to render a verdict against part of United States, the rules which may be prethe defendants, and in favor of the others, if scribed by the Supreme Court of the United the evidence before them require such a ver-States for the government of this court, or with dict, and the court shall enter up the proper judgment in such verdicts against the defendants; which judgments and verdicts shall not the existing rules of this court, shall be considered the rules and practice of this court; provided, however, and it is hereby expressly un |