« PreviousContinue »
Opinion of the court.
The remaining questions in this case relate to the exceptions of the parties to the master's report. In dealing with these exceptions, it seems to us that all we are required to notice are embraced in three different points of inquiry:
1st. Did the master err in allowing Dr. Walker $2400, as a deduction from the income of the trust property?
2d. Should the interest charged against the trustee be compounded annually, or semi-annually?
3d. Was the trustee entitled to any compensation for his services?
The solution of the first inquiry depends on the effect to be given to the receipt or memorandum signed by the complainant, dated March 27th, 1847. The complainant insists in the adjustment of the account the master mistook the effect of the instrument, and that he should have allowed as a credit against her $1500, instead of $2400. It is not easy, after this lapse of time, to tell the exact basis on which the accounts should be settled with reference to this receipt. It was a memorandum made when the parties were living in harmony, and after Dr. Walker had undertaken to invest for his wife the first check delivered to him by her, and after her purpose was manifest that the entire income of her estate should be invested to provide against the contingencies of the future. And yet this memorandum shows that she so far modified this purpose as to authorize her husband to give for her $1200 to each of her two sons, and expressed the intention of making an equal donation to her other children. The matter was probably adjusted between the parties, and, although there is no proof on the subject, the Circuit Court, doubtless, in approving this part of the master's report, acted on the idea that by long acquiescence it should be treated as having been settled. We cannot say that this view of the subject is wrong, and the exception is, therefore, overruled.
2d. The next exception relates to the manner of computing interest. That Dr. Walker acted in utter disregard of his trust, is too plain for controversy. He treated the money as his own; neither kept nor rendered any account of his Opinion of the court.
trust; and his conduct throughout is irreconcilable with the intention to perform his agreement. There is not a shadow of excuse for his neglect. The reason assigned for it to his daughter, when on his sick-bed, that he had not been able to find safe investments for the money, was the merest pretence. It could not be otherwise, as he was an intelligent man, of large wealth, and well informed on the subject of investing moneys. The condition of his estate shows that he had abundant opportunities for profitable investment on his own account; and if so, how can it truthfully be said he could not find safe investments for the small sums in his hands belonging to his wife? A court of equity, the especial guardian of trusts, will not tolerate excuses of this sort on the part of a trustee, for omitting to discharge his duty to his cestui que trust. There is, therefore, no hesitation in the court to allow, in the adjustment of the trustee's account, the interest to be compounded annually. It has been argued with earnestness that this is a case for severe treatment, and that the master should have allowed semi-annual rests; but we are not at liberty to discuss the subject, as the court are equally divided in opinion upon the question which it presents.
3d. The master was wrong in allowing any compensation to the trustee for his services, and the exception taken to that part of his report is, therefore, sustained. To hold that, in a case like this, the trustee should be allowed compensation, when he literally did nothing towards executing his trust, but on the contrary was guilty of the grossest abuses concerning it, would be a departure from correct principle. The sustaining this exception renders a modification of the decree in the Circuit Court necessary. That court passed a decree in favor of the complainant for $81,750.85. It should have been increased by the addition of $1682.38, which sum was deducted, in the account stated, for the trustee's services. The decree of the Circuit Court is, therefore, modified, on the basis that the complainant, at the time it was rendered, was entitled to recover from the respondents the sum of $83,433.23.
Statement of the case.
Interest will follow from the date of the decree, at the rate allowed on judgments and decrees in Massachusetts.
1. The principles laid down in The Grapethot (supra, 129), so far as relates to liens upon foreign vessels for repairs, affirmed. 2. The fact that the person calling himself owner and agent of the vessel gave acceptances for the amount charged for the repairs held not to affect the case, the acceptor having been insolvent and unworthy of credit, and the credit having in fact been given to the boat.
Appeal from the Circuit Court for the Eastern District of New York.
Tall filed a libel, in the District Court at New York, against the steamer Guy, claiming a lien on the boat for repairs made upon her in Baltimore, Maryland, and alleged by the libel to have been necessary to fit her for the prosecution of her then employment, which was, in connection with several other boats, the transportation of the government mails, and of passengers and freight, between Norfolk, Virginia, and Newbern, North Carolina. It was admitted that Baltimore was not the home-port of the Guy, and indeed that she did not belong to Maryland at all. The repairs were ordered by one Olney, who called himself proprietor and agent of the line, and seemed to have been the owner of the Guy; and they were reasonably fit and necessary. There was proof that the libellant received from Olney acceptances for the amount of the repairs; but none that they were taken in absolute payment. On the contrary, it appeared that the acceptor was insolvent and unworthy of credit, and that, in fact, the credit was given to the boat.
The boat having subsequently arrived in New York, was arrested on this libel. One Healy now appeared as claimant, setting up a transfer to him subsequent to the date of the repairs made, and resisted a condemnation.
Statement of the case.
The District Court decreed in favor of the libellant, and the Circuit Court having affirmed the decree, the case was brought here.
After argument by Mr. Evarts,for the appellant, and Messrs. W. W. Goodrich and 0. Horwitz, contra,
The CHIEF JUSTICE delivered the judgment of the court, to the effect, that upon the facts established it was apparent that the case was to be governed by the principles settled at this term in the case of The Grapeshoi* and that the decree of the Circuit Court having been in accordance with those principles, must be
Watkins V. United States.
1. Pleading over without reservation to a declaration adjudged good on de
murrer, is a waiver of the demurrer.
2. On a suit by the United States upon a marshal's official bond, the gov
ernment may properly rest in the first instance, after having introduced evidence, in the form of duly certified transcripts of the adjustment of his accounts by the accounting officers of the Treasury. It need not show that the marshal had notice of the adjustment of his accounts or of the balance found against him in the transcript. 8. In order to allow a marshal in such a suit to set off a credit, it must be shown that the claim for credit has been legally presented to the accounting officers of the Treasury for their examination and been by them (except in certain cases) disallowed. And to be legally presented the claim should be presented by items, and with the proper vouchers.
The United States brought suit in the Circuit Court for Maryland against Watkins, late marshal of the United States, and his sureties, on the official bond of the said marshal. Judgment was given for the United States; and Watkins took a writ of error.
* Supra, 129.
Statement of the case in the opinion.
Mr. W. M. Addison, for the plaintiff in error; Mr. W. A. Field, Assistant Attorney-General, contra.
Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.
Persons accountable for public money, if they neglect or refuse to pay the sum or balance reported to be due to the United States, upon the adjustment of their accounts, are liable for the amount; and it is made the duty of the comptroller to institute suit for the recovery of the same, adding to the sum stated to be due the commissions of the delinquent and interest at the rate of six per cent, per annum from the time the officer received the money until it shall be repaid.* Transcripts from the books and proceedings of the treasury, certified by the register and authenticated under the seal of the department, are expressly declared to be competent evidence in every such case of delinquency, and all copies of bonds, contracts, or other papers relating to or connected with the settlement of any such account, when certified by the register to be true copies of the original on file, and authenticated under the seal of the department, may be annexed to such transcripts, and shall have equal validity and be entitled to the same degree of credit which would be due to the original papers, if produced and authenticated in court, f Judgment is required to be rendered in such cases at the return term, unless the defendant shall, in open court, make oath that he is equitably entitled to credits which had been submitted to the consideration of the accounting officers of the treasury, and been rejected previous to the commencement of the suit, specifying each particular claim so rejected, in the affidavit, and stating to the effect that he cannot safely go to trial without that evidence. Such an affidavit being filed, the court may grant a continuance to the next term, but not otherwise; and the fourth section of the act provides that, in suits between the United States and individuals, no claim for a credit shall be admitted upon trial, but such as shall