17 F. Cas. 767 | U.S. Circuit Court for the District of Southern New York | 1870
This suit is brought to recover the sum of 82,321.33, ■which the. plaintiff alleges to be due to him from the defendant, as the balance, in the hands of the defendant, of moneys deposited by the plaintiff with the defendant during the year 1867, subject to draft on demand. At the time of the deposit of the moneys in question, the plaintiff jvas an assistant quarter-master in the United States’ army, and the defendant was assistant treasurer of the United States at the city of New York. The moneys deposited were moneys of the United States, entrusted to the plaintiff for disbursement, as such assistant quarter-master, in payment of claims against the United < | i j | ! ! States. On the merits, the defendant claims | that he paid out the $2,321.33 on drafts or cheques drawn on him by the plaintiff there- | for, and the plaintiff claims that such drafts Í or cheques were some of them forgeries of his ! signature, and some of them altered to larger amounts than their true amounts. Independently of the merits, however, the defendant claims that there can be no recovery against him in this action.
The 5th section of the act of August 6, 1846 (9 Stat. 59), provides for the appointment of aD assistant treasurer of the United States, to be located at the city of New York. The 6th section provides, that every assistant treasurer shall keep safely all the public money at any time placed in his possession and custody, till the same is ordered by the proper department or officer of the government to be transferred or paid out, and, when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties, as fiscal agent of the government, which may be imposed by that or any other act of congress, or by any regulation of the treasury department made in conformity to law. The 10th section provides, that it shall be lawful for the secretary of the treasury to transfer the moneys in the hands of any assistant treasurer to the treasury of the United States; and, also, to transfer moneys in the hands of any assistant treasurer to any other depositary constituted by the act, at his discretion, and as the safety of the public moneys and the convenience of the public service shall seem to him to require. The act of ‘March 3, 1S57 (11 Stat. 249), amends the act of August 6, 1846, by providing that every disbursing officer or agent of the United States, having any money of the United States entrusted to him for disbursement, shall deposit the same with the treasurer of the United States, or with some one of the assistant treasurers or public deposita-ries, and draw for the same only in favor of the persons to whom payment is to be made in pursuance of law and instructions, except when payments are to be made in sums under twenty dollars; and that, for a failure to safely keep all moneys deposited by any disbursing officer or disbursing agent of the United States, the treasurer of the United States, assistant treasurer and public depositaries shall be held guilty of the crime of embezzlement of said moneys. For the purpose of carrying into effect the provisions of this last-named act, the secretary of the treasury, on the 27th of May, 1857, issued two sets of circular instructions. One of them was addressed to the disbursing officers and disbursing agents employed under the direction of the treasury department, and directs those officers to deposit all public moneys advanced to them for disbursement, in their hands, or which may be remitted to them, with the nearest or most convenient public depositary, to their credit, to be paid out by such public
It is quite apparent, from these provisions of law and these regulations made by the treasury department, that moneys of the United States which were placed in the hands of the plaintiff for disbursement by him as a disbursing officer of the United States, were not the less public moneys belonging to the government of the United States, after they came to the hands of the plaintiff, and after they were deposited by the plaintiff, as such disbursing officer, with the defendant, as assistant treasurer of the United States, than they were before they reached the hands of the plaintiff. The moneys were never the property of the plaintiff. He is bound, indeed, to account for them to his superior officer; but, if he shows that he has, in compliance with the laws and the regulations, deposited them with a designated depositary,. and that he has not withdrawn them from the custody of such depositary, he does account for them. To an action brought against him by the United States for such moneys, it is a complete defence for him to show such a state of facts. If, as was suggested at the trial, the plaintiff has paid a second time into the treasury of the United States the moneys which he so deposited with the defendant,^ that circumstance alone cannot create in favor of the plaintiff against the defendant a right of action which did not otherwise exist. The