and with lawful interest on $490.14 thereof, from | use in connection with the Morris County Bank, November 21, 1876, with costs. a corporation of that State, of which Thomas True copy. Test: E. Allen was president. The application was James H. McKenney, Clerk, Sup. Court, U. S. made through the defendant, Robert B. Camp The bill in this case was filed in the court below by the appellant, to recover the sum of $30,000, alleged to have been lost through a breach of trust by the defendant. The court below having dismissed the bill, the complainant appealed to this court. bell; and the proposition was to give as security for the loan an assignment of two mortgages on a mine, known as the Hibernia Mine, in that State, then held by the bank, accompanied with a lease of the property. As the result of the negotiation, the complainant agreed to loan $50,000 to Monroe, upon an assignment to Campbell of the two mortgages and lease, in trust as security for the loan. In pursuance of this agreement, the bank assigned the mortgages and lease to Monroe, who assigned them to Campbell, with an irrevocable power of attorney to the latter to collect the money due on the mortgages and pay the loan at its maturity. Both assignments were executed February 11, 1865, and were to be void if the loan, with interest, was paid; the one to Monroe, if payment was made by the 11th of June following, and the one to Campbell, if payment was made by the 5th of August. The complainant thereupon gave to Campbell securities, which on sale produced the $50,000, and this sum was delivered to Monroe. Of the two mortgages, one was for $100,000 and the other for $75,000. Both were, foreclosure in chancery, in New Jersey, and of at the time of the assignment, in process of for the sale of the premises was made in the forethis fact Campbell was fully aware. A decree For a statement of the case, see the dissenting opinion of Mr. Justice Field. Messrs. Wheeler H. Peckham and Cort-closure proceedings on the first of March followlandt Parker, for appellant. ing. On the 20th of June the sale took place. Messrs. Clifford A. Hand and Charles B. Campbell was present and knew of it, and of Moore, for appellee. Mr. Justice Gray delivered the opinion of the court: Upon a careful scrutiny of the evidence by each of the Judges, a majority of the court is of opinion that the proofs do not make out the breach of trust alleged, and that the view of the defendant's obligations, which the plaintiff has undertaken to assert since the loss occurred, is inconsistent with the previous conduct and mutual dealings of the parties. As the decision involves no difficult or doubtful question of law, but a pure question of fact, depending on the weighing and comparison of varying and conflicting evidence, it can be of no value as a precedent, and the preparation of an extended opinion would not be according to the practice of the court, and would serve no useful purpose. Decree affirmed. True copy. Test: He the amount realized, which was $86,400. James H. McKenney, Clerk, Sup. Court, U. S. yourself and, therefore, I sent you the request Mr. Justice Field, dissenting: I am unable to assent to the decision of the majority of the court, and, as it involves an important principle, I am unwilling to let it pass in silence. I do not perceive any serious controversy as to the material facts upon which the liability of the defendant is asserted and, in my judgment, there is no doubt as to the law applicable to them. Devested of immaterial details, the case is briefly this: in January, 1865, one James Monroe, of New Jersey, applied to the complainant for a loan of money-at first specified to be $30,000, afterwards increased to $50,000-for to collect it and send it to me.' The president of the bank did collect it and keep it, and subsequently became bankrupt. The complainant thereby lost $30,000 of his loan; only $20,000 of the $50,000 were ever received. To charge Campbell, by whose negligence this money was lost, and compel him to pay it, this suit was brought. If proof of the facts thus stated depended upon uncertain and conflicting testimony, I might accede to the disposition of the case made by the majority of the court; but these facts are either not controverted or appear in the statements of the defendant himself. After the conversion of the money by the president of the bank, a suit was brought against him by the complainant, who, to obtain an order for his arrest, made an affidavit setting forth the particulars of the loan, the assignment of the mortgages, their foreclosure, the sale of the premises mortgaged, and the receipt and use of the money by the president. In that affidavit he states-I quote his words-that when the loan was made and the assignments were received, he "Instructed said Robert B. Campbell to take all necessary steps to make said assignments available to secure said loan" to him, the deponent; that Campbell, notwithstanding this instruction, instead of requiring the master to pay the proceeds of the sale into the court of chancery, so that the loan might be paid out of them, did, through confidence in the honesty of the president of the bank, permit the master to pay the proceeds to its solicitor, who afterwards paid them over to the president directly, or upon his order. This affidavit is accompanied with one of Campbell, who states that he had read the complainant's affidavit and knew he contents thereof, and that the matters there set forth in relation to himself and his action in the matters referred to, were true. Thus it appears from the sworn statement of Campbell that his action, which caused the loss of the money, was in direct disregard of instructions to him. Under these circumstances, why should he not be held to make good the loss? By the as in part of notes, bonds, policies of insurance I think the decree should be reversed, and Mr. James H. McKenney, Clerk, Sup. Court, U.S. UNITED STATES, Piff. in Err., v. signment to him, he became a trustee of the J. M. STONE AND W. C. McALEXANDER. mortgages for the complainant. He did not take the assignment on his own account; it was for Piffs. in Err., v. the lender to secure the loan. In taking it he J. M. STONE AND W. C. MCALEXANDER, assumed a duty towards his cestui que trust, which he could not disregard. It was to see that the assignment effected its purpose, so far, at least, as to withdraw the control of the mortgages from the mortgagee, the bank and its assignee, Monroe, and thus render them available to the lender. In stating the duties of trustees, Lewin, in his work on Trusts, says: UNITED STATES. (See S. C., 16 Otto, 525-532.) Striking out notice-objection to evidence-liability of sureties of collector-adjustment of his accounts-charge to jury-transcript from treasury books, as evidence. 1. There is no error in striking out a notice of special matter, which can be given in evidence, under the plea of nil debet, which was pleaded with the notice. 2. In an action against a collector and his sureties, brought by the United States on his official bond, an objection to certified statements of his account from evidence by the plaintiff, which did not arise upon the books of the Treasury Department, offered in the face of the accounts, but only after a comparison between them and evidence of the same kind tency of the evidence, but to its effect. "The first duty of trustees is to place the trust property in a state of security. Thus, if the trust fund be an equitable interest, of which the legal interest cannot be at present transferred to them, it is their duty to lose no time in giving notice of their own interest to the persons in whom the legal estate is vested; for otherwise, he who created the trust might encumber the interest he has settled, in favor of a purchaser without notice, who, by first giving notice to the legal holder, might gain a priority. If the trust fund be a chose in action, as a debt, which may be reduced into possession, it is the trustee's duty to be active in getting it in; and any unnecessary delay in this respect will be at his owning a prior term, or for moneys or stamps on hand personal risk." Lewin, chap. XIV., sec. 1, 6th Eng. ed.; Jacob v. Lucas, 1 Beav.,436; Caffrey v. Darby, 6 Ves.,488; Platel v. Craddock, Coop. Cas., 481; McGachen v. Dew, 15 Beav., 84; Wiles V. Gresham, 2 Drewry, 258; Cooper v. Day, 1 Rich. Ch., 26. To the same effect is the language of Perry in his treatise on Trusts. The trustee must take such steps as will prevent incumbrances from being placed upon the property transferred to him and, of course, as will prevent the possibility of its destruction, as in this case, from its conversion by the original assignor or settler. "If the trust fund," he says, "consists offered by the defendants, lies not to the compe 3. The sureties of a collector are liable for taxes which he collected during the term for which their bond was given, upon assessment rolls received durat the expiration of a former term, and remaining in his possession at the beginning of a new one. both periods, made at the Treasury Department 4. The separate adjustment of his accounts for upon its books, is prima facie evidence only of the fact and of the amount of his indebtedness, and of the time when and the manner in which it arose. not error where it is not shown, by anything in the records, surveys, flats, maps, etc. See note to Patter- he had been debited in the latter with items im- | evidence, under the plea of nil debet. It was properly transferred from previous ones, although It required further evidence to show the impropriety of the adjustment. [Nos. 97, 98.] Argued Nov. 22, 1882. IN Decided Dec. 4, 1882. N ERROR to the District Court of the United States for the Northern District of Mississippi. The case is stated by the court. Mr. William A. Maury, Asst. Atty-Gen., for the United States. Mr. George E. Harris, for defendants in error in No. 97, and plaintiffs in error in No. 98. Mr. Justice Matthews delivered the opinion of the court: This action was brought by the United States upon an official bond of Benjamin B. Emory, as Collector of Internal Revenue for the Third District of Mississippi, against himself and Stone and Alexander, two of his sureties. The bond is dated March 29, 1870; is in the penal sum of $50,000, and reciting that Emory had been appointed and had received a commission as collector for the district mentioned, dated December 29, 1869, is conditioned that " He shall truly and faithfully execute and discharge all the duties of the said office according to law, and shall justly and faithfully account for and pay over to the United States, in compliance with the orders and regulations of the Secretary of the Treasury, all public moneys which may come into his hands or possession," etc. The breach alleged is, that he failed to account for and pay over the sum of $57,497.84 of public moneys, which had come into his possession as such collector. proper to strike it out, because it was matter which denied the plaintiff's whole cause of action, which, consequently, it was bound to meet with its own evidence in the first instance, and which, therefore, the defendants traversed by the plea of nil debet, and the plea denying the alleged breach of the condition of the bond. Any evidence which would have been competent under the notice, would have been equally so without it; and in point of fact, all the evidence, of fered on the part of the defendants, which was competent under the notice, was admitted under the pleas. 2. The first bill of exceptions taken by the defendants states that "The said plaintiff offered to read to the jury certain transcripts from the books of the Treasury Department at Washington City, and certified transcripts of papers on file in said department, touching the official conduct of B. B. Emory, as late Internal Revenue Collector of the Third District of Mississippi, which said transcripts are dated respectively * as shown by the certificates of the Secretary of the Treasury. And to these transcripts the defendants had filed written exceptions and objected to their introduction as evidence for the reasons assigned in said exceptions." The court overruled the objection and permitted the transcripts to be read in evidence, to which reading the defendants excepted; and it is now assigned for error. * # In another part of the record there is this statement: "The following are transcripts from the books of the Treasury Department at Washington and of papers on file, which are referred to in the bills of exception taken and filed in this cause." Then follows forty-seven printed pages of matter, consisting of certified statements of account from the books of the Treas The defendants pleaded nil debet, and gave notice of special matter to be given in evidence under that plea, among others, that "The al-ury Department, and copies of numerous paleged liability for which this suit is brought arose, if it arose at all, under a bond given by said Emory, as such collector, in October, 1869, and not under the bond on which this suit was brought," etc. They also pleaded payment before suit brought, and also an argumentative plea of non est factum, to which a demurrer was sustained. Subsequently, they filed an additional plea traversing the alleged breach of the condition of the bond. Before the trial, the district attorney moved to strike out the defendants' plea of nil debet, with the notice of special matter attached; and an order sustaining that motion appears from the record to have been made; although, from a bill of exceptions taken at the time, it is stated that the motion was sustained only so far as the notice was concerned, and overruled as to the plea. There was a verdict in favor of the United States for $10,003.52, and judgment rendered thereon. Writs of error were sued out by both parties, and are now prosecuted to reverse that judg ment, for errors alleged to have been committed by the court in its rulings on the trial, duly excepted to by the parties, respectively, and brought upon the record by bills of exception. They will be considered in their order, beginning with these assigned by the defendants below: 1. There was no error, as alleged, in striking out the notice of the special matter to be given in pers on file, apparently relating to the accounts of this collector. But it is impossible to know, with accuracy, from the record, which of these were offered in evidence by the plaintiff, and to which the objection was intended to apply; for it appears from another bill of exceptions, and there were six in all, which was taken by the plaintiff, that some of these transcripts from the books of the Treasury Department were offered by the defendants themselves, and admitted in evidence, against the objection of the district attorney; a ruling we are called upon to consider hereafter, as it is alleged as error on the part of the United States, under the writ of error which it prosecutes. It is only by subtracting these from the entire mass, that we can infer to what the defendants objected. The exceptions filed to these transcripts, referred to in the bill of exceptions and found elsewhere in the record, are as follows: "1. The certificates are not such as the law requires. 2. The transcripts are incomplete, and do not set out the entries on the books of the department, and are not transcripts from the books, but summaries of what the officers suppose the books contain. 3. The reports and receipts of Emory, as collector for assessments, and other papers connected with the settlement of his accounts by the department, are not set out in said transcripts. 4. Emory's monthly and quarterly reports are not set out in said transcripts. 5. Emory's receipts for assessments are not set out in said transcripts. 6. Facts are set out in said transcript which did not come before the department, which were not in the course of its business, and of which its transcript is no evidence. 7. Said transcripts are partial, imperfect, and do not present the whole record statement in regard to said Emory's accounts as late collector, as aforesaid." The particulars in which the transcripts in question are supposed to be open to these exceptions are not pointed out to us, either by anything in the record or in argument by counsel, and there is nothing upon their face which suggests them to us. The papers in question seem to be in the usual form of such statements, and purport to be copies, from the books of the Treasury Department, of the accounts between the collector and the United States, containing the usual items, and showing the appropriate balance between the debits and credits. If there is anything in them illegal, insufficient or incomplete, we have not been able to discover it. U. S. v. Gaussen, 19 Wall., 198 [86 U. S., XXII., 41]. It is, however, said by counsel for defendants, that in the treasury transcript, showing an adjustment of the collector's accounts, covering all his official time prior to the date of giving the bond sued upon, he is charged with five items, aggregating $50,063.20; and that this account is balanced by credits, three items of which purport to be transfers to himself, as his own successor, amounting to $30,534.42, which, it is alleged, was an existing indebtedness to the Government. In the next adjustment he is charged with the same items, showing an arrearage at that time, of $60,613.85, and a balance is found against him as occurring since the date of the bond in suit, the effect of which, it is argued, is to shift a default from the first to the second bond; and it is claimed that, for this reason, the transcript offered by the district attorney was not competent evidence and should have been excluded from the jury. But this objection did not arise upon the face of the accounts offered in evidence by the United States, but only after a comparison between them and that offered by the defendants and, therefore, would lie, not to the competency of the evidence, but to its effect. And while it is true that the sureties sued are liable only for money received during the term for which the collector was appointed, covered by the bond to which they are parties, and not for the misapplication of money received and misapplied prior or subsequent to that term, U. 8. v. Eckford, 1 How., 250, nevertheless it is equally true that they are liable for taxes collected during that term, upon assessment rolls received during a prior term, or for moneys or stamps on hand at the expiration of a former term, and remaining in his possession at the beginning of a new one; for the collector is responsible as well for moneys and stamps retained by him as his own successor, as for those received by him from any other predecessor. And the separate adjustment of his accounts for both periods, made at the Treasury Department upon its books, is prima facie evidence,not only of the fact and of the amount of the indebtedness, but also of the time when and the manner in which it arose. It is, of course, always open to the defendants sought to be charged, to show by opposing proof that the default charged occurred before the commencement of their liability. We repeat what was said by this court in U. S. v. Eckford, 1 How., 263: "The amount charged to the collector at the commencement of the term is only prima facie evidence against the sureties. If they can show, by circumstances or otherwise, that the balance charged, in whole or in part, had been misapplied by the collector, prior to the new appointment, they are not liable for the sum so misapplied." 3. It is next assigned for error, that the court omitted to charge the jury, "That facts not properly appearing on the books of the Treasury Department could not be embraced in the transcript, facts of which the department had no knowledge; and if so embraced they did not constitute proof in this case.' This alleged omission on the part of the court is stated in the bill of exceptions to have occurred in connection with the following instruction, which was given: "That, while it was true that the plaintiff could only recover in this case for money actually collected by Emory, and not accounted for to the Government, yet, if they believe from the evidence that Emory had received the assessment rolls of the taxes imposed, that was prima facie evidence that he had received the money on them, in the absence of any other or further proof on that subject." Although the giving of this charge was excepted to, the error assigned upon it was not pressed in argument, nor could it be maintained; as the instruction was, undoubtedly, correct. Nor does it appear from the bill of exceptions that the court was asked to give the instruction, the omission of which is now complained of; although it states that for that cause the defendants then and there excepted. But, waiving the form of the exception, it must be overruled, because, however correct the rule may be, which it states the court omitted to give to the jury, it is not shown, by anything in the present record, how it could apply to the case. It was not shown that there were any facts embraced in the transcripts which could not properly appear on the books of the Treasury Department, nor any of which the department had not knowledge; and no attempt has been made to point them out in argument. This disposes of the errors assigned by the defendants, in none of which do we find any ground for disturbing the judgment. 4. A bill of exceptions was taken, during the trial on the part of the United States. From that it appears that the defendants offered in evidence a certified copy of the official bond of Emory, as Collector of Internal Revenue for the Third District of Mississippi, under an appointment dated October 2, 1869; the bond being dated October 11, 1869, with sureties other than the present defendants, and a certified transcript from the books of the Treasury Department of an adjustment of his accounts, as such collector, under that appointment, from November 4, 1869, to March 28, 1870, showing a balance due from him to the United States, transferred to himself as his own successor," of $4,027.52, and with which he is charged in the next adjust " ment under the bond sued on, dated March 29, 1870; and in which, also, he is credited with $13,050.17, as "Amount of taxes on lists transferred to himself as collector under second bond," and with $13,456.13, as "Amount of stamps transferred to himself as collector under second bond, viz.: tobacco $8,098.88, spirits $5,327.25." To the introduction of these documents in evidence, the district attorney objected. The objection was overruled, the evidence was admitted, and an exception was taken, on which error is now assigned on the part of the United States. The objection, however, cannot be sustained. We have already stated that it was competent for the defendants to show, in their own exoneration, that the balance charged against the collector, upon the adjustment of his accounts, during the period when they were liable for his defaults, in fact, had arisen by virtue of some default accruing during a prior term. For that purpose and as tending to prove such a claim, it was competent and proper to show that credits had been given to him, on a prior account, that belonged to subsequent ones, and that he had been debited in the latter with items improperly transferred from previous ones. And to do that, the accounts, in which these charges and credits appeared, were manifestly pertinent and material. It required, of course, further evidence to show the impropriety of the adjustment, unless the facts appeared on the face of the papers, as they did not in this case; and the failure to follow them up, with such further evidence, might have been a sufficient ground, when the defendants had rested, for granting a motion to rule out the testimony, or for an instruction to the jury as to its effect; but the objection would not prevail, in the first instance, to its introduction. right, as against the United States, which could be Argued Apr. 24, 25, 1882. Decided Dec. 4, 1882. The history and facts of the case fully appear in the Statement of the case by Mr. Justice Harlan: The In this action, brought under the Captured and Abandoned Property Act of March 12, 1863, the present appellants seek to recover from the United States the net proceeds (alleged to be at least $600,000) of certain cotton, seized and sold by the agents of the Government in the year 1865. The petition was dismissed in the Court of Claims, and from the judgment of dismissal this appeal has been prosecuted. facts, as found by that court, are substantially these: prior to the year 1865, John Scott, the chief agent for produce loan for the Confederate Government, in Alabama and East Mississippi, purchased in lots, at different times and of different planters in those States, 3,405 bales of cotton, taking from the planter on each purchase, a receipt and agreement in the following form: "STATE OF MISSISSIPPI, County of town or postoffice November 27, 1862. The undersigned, having sold to the Confederate States of America, and received the value of the same in bonds, the receipt whereof is hereby acknowledged, one hundred and thirtyfive bales of cotton, marked, numbered and classed as in the margin, which is now deposited at plantation, hereby agrees to take due care of said cotton whilst on his plantation, and to deliver the same, at his own expense, at in the State of Mississippi, to the order of the Secretary of the Treasury, or his James H. McKenney, Clerk, Sup. Court, U.S. agents or their assigns.' We find no error in the record, and the judgment is affirmed. True copy. Test: SAMUEL P. WALKER'S EXECUTORS AND v. UNITED STATES. (See S. C., 16 Otto, 413-422.) Purchase of cotton within insurrectionary lines, when invalid-claim against Government. In each instance, he delivered to the planter a certificate in the following form: ABERDEEN, Nov. 27, 1862. The undersigned, as agent of the Government, certifies that the within cotton has been examined by him or by a competent judge, and that its character will rank, according to the commercial scale, as middling; and also, that the weights and marks are as described-the cotton being in good merchantable order, marked with the name of the planter, and on one end the initials, C. S. A., and safely stored in a covered building. 33 The undersigned certifies that the price agreed upon is a fair market price at the present time. Agt. There were thirty-seven such certificates, upon which appeared the number, weight and marks of the bales purchased. The Confederate Government, being in need of large sums of money for its military depart *On the 12th day of April, 1865, Walker, a citizen and resident of Memphis, purchased, in Mobile, from O'Grady, a citizen and resident of that city-both cities being then in the occupancy of the national forces a lot of cotton, which, at the time, was in the military lines of the insurgent forces, in the States of Alabama and Mississippi, the inhabitants whereof had been declared to be in insurrection. Between June 30, and December 1, 1865, a portion of the cotton-while in the hands of the planters from whom it was originally purchased by the Confeder-ment, and in order to pay debts incurred and ate Government, and from the agent of which to be incurred, authorized and directed Scott O'Grady had purchased, in Mobile, on the 5th day to sell this cotton, and all other cotton purof April, 1865-was seized by Treasury agents of the chased by him in like manner. Accordingly, United States, sold, and the proceeds paid into the treasury. Held, that the purchase from O'Grady on the 6th day of April, 1865, at Mobile, Alaby Walker was in violation of law, and was not one bama, the place of his residence and business, out of which could arise, in favor of the latter, any he, as such Confederate produce loan agent, *Head note by Mr. Justice HARLAN. sold to one O'Grady, a citizen and resident of |