Treasury Transcripts, and Treasury Documents, when and how far Evidence. the seal which authenticates the transcript, and not the signature of the secretary. He is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved in deciding this point, whether the secretary of the treasury can delegate to another the power to do an official act, which the law devolves on him personally. Ibid. and thirty-two dollars and seventy-eight cents." And one other warrant was charged, June 22d, "for a bill of exchange in favour of Richard Smith, dated June 22d, 1810, four thousand dollars; and also a warrant to Richard Smith, per order, for eight thousand dollars." These items, the circuit court instructed the jury, were not sufficiently proved by being charged in the account, and certified under the act of congress. By the court:-The officers of the treasury may well certify facts which come under their official notice, but they cannot certify those which do not come within their own knowledge. The execution of bills of exchange and orders for money on the treasury, though they may be "connected with the settlement of an account," cannot be officially known to the accounting officers. In such cases, however, provision has been made by law, by which such instruments 1244. Nothing done at the treasury, which did not fall within the scope of the authority of the accounting officers, in settling accounts, can be received in evidence. In the case of the United States v. Buford, 7 Peters, 29, it was held by the supreme court, that an account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. Such are made evidence, without proof of the handstatements at the treasury can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, when the transactions are shown by its books. Cox and Dick v. The United States, 6 Peters, 202. 1245. An account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. A treasury statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, when the transactions are shown by its books. In these cases, the officers may well certify; for they must have official knowledge of the facts stated. United States v. Buford, 7 Peters, 29. 1246. But when moneys come into the hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department. In such a case, the claim of the United States for money thus in the hands of a third person must be established, not by a treasury statement, but by the evidence on which that statement was made. Ibid. 1247. A treasury transcript, produced in evidence by the United States, in an action on a bond for the performance of a contract for the supply of rations to the troops of the United States, contained items of charge which were not objected to by the defendant. The defendant objected to the following items, as not proved by the transcript: "February 19th, 1818, for warrant 1680, favour of Richard Smith, dated 27th December, 1817, and 11th February, 1818, twenty thousand dollars." Aud on the 11th of April, of the same year, another charge was made "for warrant No. 1904, for the payment of his two drafts, favour of Alexander M'Cormick, dated 11th and 17th of March, 1818, for ten thousand dollars." And on the 14th of May, of the same year, a charge was made "for warrant No. 2038, being in part for a bill of exchange in favour of Richard Smith, for twenty thousand dollars, twelve thousand eight hundred writing of the drawer. The act of congress of the 3d of March, 1797, makes all copies of papers relating to the settlement of accounts at the treasury, properly certified, when produced in court annexed to the transcript, of equal validity with the originals. Under this provision, had copies of the bills of exchange and orders, on which these items were paid to Smith and M'Cormick, been duly certified and annexed to the transcript, the same effect must have been given to them by the circuit court, as if the original had been produced and proved. And every transcript of accounts from the treasury, which contains items of payments made to others, on the authority of the person charged, should have annexed to it a duly certified copy of the instruinent which authorized such payments. And so in every case where the government endeavours by suit to hold an individual liable for acts of his agent. The agency, on which the act of the government was founded, should be made to appear by a duly certified copy of the power. The defendant would be at liberty to impeach the evidence thus certified ; and, under peculiar circumstances of alleged fraud, a court might require the production of the original instrument. This, however, would depend upon the exercise of the discretion of the court, and could only be enforced by a continuance of the cause until the original should be produced. United States v. Jones, 8 Peters, 375. 1248. The following item in the treasury transcript was not admissible in evidence: "To accounts transferred from the books of the second auditor for this sum, standing to his debit, under said contract, on the books of the second auditor, transferred to his debit on those of this officer, forty-five thousand dollars." The act of congress, in making a "transcript from the books and proceedings of the treasury" evidence, does not mean the statement of an account in gross, but a statement of the items, both of the debits and credits, as they were acted upon by the accounting officers of the department. On the trial, the defendant shall be allowed no credit on vouchers, which have not been rejected by the treasury officers, unless it was not in his power to have produced them; Treasury Transcripts, and Treasury Documents, when and how far Evidence. and how could a proper effect be given to this provision, if the credits be charged in gross? The defendant is unquestionably entitled to a detailed statement of the items which compose his account. Ibid. a previous account, had been paid a balance of nineteen thousand one hundred and forty-nine dollars and one cent, stated to be due to him, which was paid to his agent, under a power o attorney, and the receipt for the same endorsed on the back of the account. The circuit court instructed the jury, that the second transcript was not evidence, per se, to establish the items charged to O. Held, that there was no error in this instruction. United States v. Jones, 8 Peters, 387. 1249. The defendant, in an action by the United States, where a treasury transcript is produced in evidence by the plaintiffs, is entitled to the credits given to him in the account; and in claiming those credits, he does not waive any objection to the items on the debit side of the account. He is unquestionably entitled to the 1254. The counsel for the United States also evidence of the decision of the treasury officers gave in evidence the power of attorney to R. upon his vouchers, without reference to the Smith, and his receipt, proved by Smith, that charges made against him. And he may avail the money received by him, under the said himself of that decision, without in any degree power of attorney, was applied to the credit of restricting his right to object to any improper O. in the Bank of the United States at Washing charge. The credits were allowed the defend-ton; which payment the witness supposed was ant on the vouchers alone, and without reference to the particular items of demand which the government might have against him. And the debits, as well as the credits, must be established on distinct and legal evidence. Ibid. 1250. The defendant is entitled to a certified statement of his credits, as allowed by the accounting officers; and he has a right to claim the full benefit of them, in a suit by the government; and under no circumstances has the government a right to withdraw eredits which have been fairly allowed. Ibid. 1251. The law has prescribed the mode by which treasury accounts shall be made evidence; and whilst an individual may claim the benefit of this rule, the government can set up no exemption from its operation. In the performance of their official duty, the treasury officers act under the authority of law; their acts are public, and affect the rights of individuals as well as those of the government. In the adjustment of an account, they sometimes act judicially, and their acts are all recorded on the books and files of the treasury department. So far as they act strictly within the rules prescribed for the exercise of their powers, their decisions are, in effect, final; for if an appeal be made, they will receive judicial sanction. Accounts, amounting to many millions annually, come under the action of these officers. It is, therefore, of great importance to the public, and to individuals, that the rules by which they exercise their powers should be fixed and known. lbid. 1252. In every treasury account on which suit is brought, the law requires the credits to be stated as well as the debits. These credits the officers of the government cannot properly either suppress or withhold. They are made evidence in the case, and were designed by the law for the benefit of the defendant. Ibid. 1253. O. made a contract with the government to supply the troops of the United States with rations within a certain district, and executed a bond and contract agreeably to the usages of the war department. The United States brought an action against O. on the bond, and gave in evidence the contract annexed to the bond, and a treasury statement, which showed a balance against O. The United States also gave in evidence another transcript to prove that O., under male known to O., though he could not speak positively on the subject, as he did not communicate the information to him. And the counsel who offered this evidence stated, that he offered it to show that the accounts between O. and the government, under the contract of the 15th of January, 1817, had been settled up to that time, and that the balance of nineteen thousand one hundred and forty-nine dollars and one cent had been paid to Smith, as the agent of O., and that he offered the evidence for no other purpose. The counsel for the United States then gave in evidence to the jury, a subsequent account be tween O. and the government, under the con tract. And, on the prayer of the defendant, the circuit court instructed the jury, "that the said accounts were not competent, per se, upon which to charge the defendant or his intestate for any sums therein contained, further than the mere payment of money from the treasury to the said intestate, or to his authorized agent." By the court:-The items embraced by this instruction were charges made against O. for the acts of certain persons, alleged to be his agents, without annexing to the transcript copies of any papers showing their agency, or offering any proof that they acted under the authority of O.: the cir cuit court, therefore, properly instructed the jury, that the transcript, per se, did not prove these items. Ibid. 1255. The plaintiffs then proved by R. S. that he received, as the agent of O., six thousand three hundred and fifty dollars and ninety-nine cents, on warrant No. 5471, under the contract and that the same was applied to the credit of O. in the Bank of the United States at Washing ton, of which payment the witness believed 0. had notice. The counsel for the plaintiffs stated, that they confined their claim to the above item, which was the first one charged in the treasury account exhibited. The counsel for the defend ant then moved the court to instruct the jury, that this account, as also the preceding offered in evidence by the plaintiffs, was evidence for the defendant, of the items of credits contained in either, and that in claiming them he did not admit the debits; which instruction was given by the court, and to which an excep tion was taken. By the Court: This instruc tion involves the same question which has one Answers to a Bill in Chancery, how far Evidence. already been decided between the same parties, at the present term. There was no error in giving the instruction. Ibid. 1256. In the further progress of the trial, the plaintiffs offered to withdraw from the jury the said two accounts mentioned in the preceding exception, and all the evidence connected with said accounts, to which the defendant's counsel objected, and the court refused the motion. By the Court:-A treasury account which contains credits as well as debits, is evidence for the defendant as well as the government; and unless there be an abandonment of the suit by the counsel for the government, it has no right to withdraw from the jury any part of the credits relied on by the defendant. Ibid. be given in evidence under a plea of payment. United States v. Beattie, Gilpin's D. C. R. 97. 1263. The certificate of the register of the treasury department, under his hand, that certain receipts, of which copies are annexed, are on file in his office, with a certificate of the secre tary of the treasury, under the seal of the de partment, that he is register, is not evidence. It must appear not only that the officer who gives the certificate, has the custody of the papers, but that he is authorized by law to certify them, and the register is not so authorized; a sworn copy should have been produced. Bleecker v. Bond, 3 Wash. C. C. R. 529. 1265. A transcript from the treasury, which contains sums charged in gross, as balances, is not evidence as to such balances. The United | States v. Edwards, 1 M'Lean, C. C. R. 467. 1264. At the treasury department a general account had been kept with a collector of the 1257. The circuit court, on the prayer of the customs, from the time of his appointment; defendant, instructed the jury, that the transcript during which, different bonds had been given to from the books and proceedings of the treasury, the United States for each term of office. Afcan only be regarded as establishing such of the terwards, a statement of the account of the colitems of debit, in the account stated in the said lector for one term of office was made out, and transcript, as are for moneys disbursed through a transcript of this account was offered in evi the ordinary channels of the treasury depart-dence. The evidence was legal. The United ment, where the transactions are shown by its States v. Eckford's Executors, 17 Peters, 251. books, and where the officers of the department must have had official knowledge of the facts stated: but that the transcript is evidence for the defendant of the full amount of the credits therein stated; and that, by relying on the said transcript, as evidence of such credits, the defendant does not admit the correctness of any of the debits in the said account, of which the transcript is not, per se, evidence; and that the said transcript is not, per se, evidence of any of the items of debit therein stated, except the first. By the Court: The correctness of the principle laid down by the circuit court in this instruction, has been recognised by the supreme court, in a case between the same parties, at the present term. Ibid. 1258. The auditor's report of a balance due from a person accountable for public money, is a guide to the comptroller as to the amount to be sued for, but not evidence for the court of the debt. United States v. Patterson, Gilpin's D. C. R. 47. 1259. Where the public officers are authorized by law to certify to certain facts, their certificates to these facts are competent evidence thereof. Gass v. Stinson, 2 Sumner's C. C. R. 650. 1266. The original items on which the accounting officers acted must be stated. Ibid. 14. Answers to a Bill in Chancery, how far Evi dence. 1267. If the answer neither admits nor denies the allegations of the bill, they must be proved, on the final hearing; but upon a question of the dissolution of an injunction, they must be taken to be true. Young v. Grundy, 6 Cranch, 51. 1268. An answer in chancery responsive to the bill, is evidence in favour of the defendant. Russell v. Clark's Executor, 7 Cranch, 69; 2 Cond. Rep. 417. 1269. The answer of one defendant is not evidence against his co-defendant; nor is his deposition, unless he is a disinterested witness. Clark's Executors v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 1270. If the defendant, in a proceeding in chancery, assert a fact which is not, and cannot 1260. A certified statement of a balance due, be within his own knowledge, the nature of his and the report thereof to the comptroller, is not testimony cannot be changed by the positivesuch a transcript from the books and proceed-ness of his own assertion. The strength of his ings of the treasury as may be given in evidence under the second section of the act of 3d March, 1797. United States v. Patterson, Gilpin's D. C. R. 47. 1261. The provisions of the act of 3d March, 1825, substitute a certified statement of settled account, as evidence in suits against deputy postmasters in lieu of the certified copy of the account current required by the provisions of the act of 30th April, 1810. Postmaster-General v Rice, Gilpin's D. C. R. 562. belief may have betrayed him into a mode of expression of which he was not fully apprized. When he intended to utter only a strong conviction of the existence of a peculiar fact, or what he deemed an infallible deduction from facts which were known to him; he may assert that belief on that deduction, in terms which convey the idea of his knowing the fact itself. Ibid. 1271. The answer of a defendant in chancery, though he may be interested to the whole amount in controversy, is conclusive evidence, if uncon1262. The letters and transactions between tradicted by any witness in the cause. Lenox the officers of the government, and a debtor tov. Prout, 3 Wheat. 520; 4 Cond. Rep. 311. the United States, relative to his account, may VOL. I.-60 1272. The answer of one defendant is evi Answers to a Bill in Chancery, how far Evidence. dence against other defendants claiming through him. Field et al. v. Holland et al., 6 Cranch, 8; 2 Cond. Rep. 285. 1273. The answer of a defendant is evidence against the plaintiff, although it be doubtful whether a decree can be made against such defendant. Ibid. 1274. The plaintiffs cannot avail themselves of the answer of a defendant who is substantially a plaintiff: it is not evidence against a codefendant. Ibid. 1283. Whenever the confessions of any party would be good evidence against another, a fortiori, they may be read against him. Osborn v. The Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 741. 1284. The defendant's answer in support of his plea is good evidence, unless disproved by two witnesses, or by one witness and other cir cumstances; and it will prevail in his favour. Ibid. 378. the 1285. In an answer to a bill in equity which 1275. It is a general rule that either two wit- relies on new facts by way of discharge or nesses, or one witness, with probable circum-avoidance, or defence, not responsive stances, will be required to outweigh an answer bill; they must be established by independent asserting a fact responsively to the bill. The process. The answer is not evidence of them. reason is, the plaintiff calls upon the defendant Randall v. Phillips et al., 3 Mason's C. C. R. to answer the allegation he makes, and thereby admits the evidence: if it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favour, he must have circumstances in addition to his single witness in order to turn the balance. But there may be evidence, arising from circumstances, stronger than the testimony of any single witness. Clark v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 1276. The weight of an answer must, also, from the nature of evidence, depend in some degree upon the fact stated. 'Ibid. 1277. A defendant having, perhaps incautiously, used terms indicating a knowledge of what in the nature of things he could not know, cannot give to his answer more effect than it would have been entitled to, had he been more circumspect in his language. Ibid. 1278. An injunction bill was filed, upon the oath of the complainant, against a corporation, and an answer was put in, under their common seal, unaccompanied by an oath. The weight of such an answer is very much lessened, if not entirely destroyed, when it is not sworn to. The Union Bank of Georgetown v. Geary, 5 Peters, 99. 1279. If the answer of the defendant be responsive to a bill, and deny the allegation contained in it, the plaintiff must support his averment by a witness, and corroborating circumstances, to avoid the effect of the answer. Higbee v. Hopkins, 1 Wash. C. C. R. 230. 1280. In general, the answer of one defendant in equity, cannot be read in evidence against another. But where one defendant succeeds to another, so that the right of the one devolves on the other, and they become privies in estate, the rule does not apply. Osborn v. The Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 741. 1281. An allegation in any answer, which is not responsive to the bill, is not evidence; and the onus probandi is on the defendant to establish it. Flagg v. Mann, 2 Sumner's C. C. R. 487. 1282. The answer of one defendant to a bill in chancery, cannot be used as evidence against his co-defendant; and the answer of an agent is not evidence against his principal, nor are his admissions in pais, unless where they are a part of the res gesta. Leeds v. Marine Ins. Co. of Alexandria, 2 Wheat. 380; 4 Cond. Rep. 170. 1286. An answer in chancery asserting a fact not responsive to any allegation in the bill, proves nothing, in the absence of testimony. Clements v. Peters, Circuit Court of Pennsylvania. 1287. An answer to an original bill responding to or denying its allegations, must be taken as true, unless disproved by two witnesses, and strong corroborating circumstances. Searcey v. Parmel, 1 Cooke's Rep. 110. 1288. But where the bill is also sworn to, one witness is sufficient. Ibid. 1289. No admissions in an answer to a bill in chancery can, under any circumstances, lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the bill. Jackson v. Ashton, 8 Peters, 148. 1290. The rule in chancery is, if the answer of the defendant admits a fact, but insists on matter by way of avoidance, the complainant need not prove the fact admitted, but the de fendant must prove the matter in avoidance. Clarke et al. v. White, 12 Peters, 178. 1291. Where the plaintiff in a bill in chan cery charged directly on the defendant, that he he had made and entered into a certain agree ment, a simple denial by the defendant in his answer, "according to his recollection and be lief," is insufficient, and must be treated as ar evasion. Taylor v. Luther, 2 Sumner's C. C. R. 228. 1292. It is a general rule, that an answer not under oath, is to be considered merely as a denial of the allegation in the bill, analogous to the general issue at law, so as to put the com plainant to the proof of such allegation. 5 Peters, 99. 1293. An answer, denying the right of the complainant, is evidence in favour of the defend ant. Tilghman and Wife v. Tilghman's Er'n, Baldwin's C. C. R. 494. 1294. But if he admits the right, and sets up new matter in bar, if he admits the charge, and avers a discharge at a different time, by a dis tinct transaction, or sets up an affirmative claim in his own right to the subject-matter claimed by the complainant, it is not evidence in his favour. The defendant must make out his case as a plaintiff ought to do. Ibid. 495. 1295. Where a cause is set down for a hear ing on the bill, answer, and exhibits, withert Reports of Surveyors or Commissioners in Cases of Unsoundness of Vessels, or of Sea Damage. other pleadings, the whole of the answer must be considered as true. Leeds v. The Marine Ins. Co., 2 Wheat. 383; 4 Cond. Rep. 170. 1296. A decree cannot be pronounced, on the testimony of a single witness, unaccompanied by corroborating circumstances, against a positive denial, by the defendant, of any matter directly charged by the bill, in the defendant's answers, or answer in support of his plea. Hughes v. Blake, 6 Wheat. 453; 5 Cond. Rep. 136. 1297. A purchaser who chooses to answer the bill generally, need not aver that he is a purchaser without notice. The plaintiff must prove notice; notice denied by the answer, must be proved by two witnesses, or one witness and circumstances. M'Neil v. Magee, 5 Mason's C. C. R. 244. 1298. The confessions of a party in his answer to a bill, or in writing, under his hand, that -the money laid out belonged to the person, is sufficient evidence. Phillips et al. v. Crammond, 2 Wash. C. C. R. 441. reciting the certificate of surveyors, that the vessel was unworthy of being repaired, and un safe and unfit ever to go to sea again, and produced evidence, by the insured, to prove the loss, is a "regular survey," in the language of the above clause. Ibid. 1303. But the survey must correspond with the contract, and if the vessel be declared unseaworthy for any additional cause, besides being "unsound or rotten," it will not avail the insurers. Ibid. 1304. Under policy containing the following clause, "it is declared and understood, that if the abovementioned brig, after a regular sur vey, should be condemned for being unsound or rotten, the insurers shall not be bound to pay the sum hereby insured, or any part thereof." A survey by the master and wardens of the port of New Orleans, which was obtained at the instance of the master, who was also part owner, transmitted by him to the other part owner, and by the latter laid before the underwriters, as proof of the loss, stated that the wardens "or1299. It is a well settled rule, that, in a bill dered one streak of plank fore and aft to be praying relief, when the facts charged in the taken out, about three feet below the bends, on bill as the ground for the decree are clearly and the starboard side, and found the timber and positively denied by the answer, and proved bottom plank so much decayed, that we were only by a single witness, the court will not unanimously of opinion her repairs would cost decree against the defendant. And it is equally more than she would be worth afterwards, and well settled, that when the witness on the part that it would be for the interest of all concerned, of the complainant, is supported and corrobo- she should be condemned as unworthy of repair; rated by circumstances sufficient to outweigh on that ground we did, therefore, condemu her the denial in the answer, the rule does not apply. as not seaworthy and unworthy of repair: and, Union Bank of Georgetown v. Geary, 5 Peters, 99. therefore, according to the power vested by law 1300. The separate answer of one of the co-in the master and wardens of this port, we do defendants, in a proceeding in chancery, was relied on in the argument for the defendant, to show the nature of the transaction between the parties in 1822, when the deed was executed by Morris to Nixon. The court took notice of the matters stated in the answer, but considered that, even if the answer was evidence in the cause, of the matters stated in it, they would have no influence on the opinion the court had adopted in the case. No decision was given whether the answer was, or was not, evidence for the defendant. Morris v. Nixon et al., 17 Peters, 109. 15. Reports of Surveyors or Commissioners in Cases of the Unsoundness of Vessels, or of Sea Damage. 1301. Under a policy containing the following clause, "and lastly, it is agreed that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, then the assured shall not be bound to pay their subscriptions on this policy;" and it was found by the jury, that the vessel was seaworthy at the time of the commencement of the risk, and when she sailed on the voyage insured. Held, that proof, by a regular survey, of unsoundness, at any subsequent period of the voyage, discharged the underwriters. Dorr v. The Pacific Ins. Co., 7 Wheat. 581; 5 Cond. Rep. 360. hereby order and direct the aforesaid damaged brig to be sold at public auction, for the account of the insurers thereof, or whomsoever the same may concern." It was held, that, "under the circumstances, this survey was conclusive evidence to discharge the insurers under the foregoing clause in the policy." Janney v. Columbian Ins. Co., 10 Wheat. 411; 6 Cond. Rep. 166. 1305. When a vessel is examined by surveyors, and they report that many of her timbers are unsound and rotten, and that in the shattered and strained condition of the vessel, and the want of proper docks for repairing her, the repairs would cost more than she is worth, and therefore recommending a sale, this is not a condemnation for unsoundness or rottenness, within that clause in the policy which declares, that in case the vessel should be condemned as unsound or rotten, the underwriters should not be liable. Watson et al. v. The Insurance Company of North America, 3 Wash. C. C. R. 1. 1306. A survey ordered by an American consul, in a foreign port, into which the vessel insured put for repairs, and a report of surveyors thereon, are not admissible in evidence, this not being a judicial act; but the fact must be proved, as in ordinary cases. It might have been otherwise, if it had appeared there were no tribunals in the place from which a regular order of sur vey and condemnation could be obtained. Cort v. The Delaware Ins. Co., 2 Wash. C. C. R. 375. 1302. An exemplification of a condemnation 1307. A certificate of the survey of a vessel of the vessel in a foreign court of vice-admiralty, | is not evidence of the facts stated in it; but if |