United States v. Duval , 25 F. Cas. 953 ( 1833 )

HOPKINSON, District Judge.

When a controversy, consisting almost entirely of questions of fact, has been fully and fairly tried by an impartial and intelligent jury, each party having produced all the evidence in his power, and no expectation being entertained by either of furnishing any additional facts, a court would yield, with extreme reluctance, to an application to set aside the verdict. The cause now before us occupied the attention of this court, and such a jury as I have described, for more than ten days, and every part of it was laboriously examined and discussed. There is no hope that anything can be added to it, either in the way of argument or evidence, on another trial. In such a case the objections to the verdict should be cogent indeed, before the court would allow them to prevail against it. In addition to this general principle, there are circumstances in this case which make me very unwilling to disturb the decision of the jury. The controversy arose on a long and old account, in relation to transactions in a distant wilderness, in part with savages, and in part with men not much above them in education and a knowledge of the forms of business. The transactions themselves were sometimes the result of sudden emergencies, when the public service required a prompt action, and an observance of exact regularity was impossible without danger to the service. It is obvious that in such an agency, it would scarcely be just or reasonable to call for, at this distance of time as well as place, a full and satisfactory explanation of all the doubts and 'difficulties which may present themselves here, in the investigation of these complicated affairs, and of the various items, some of them very small, which are brought into the account Unfortunately one of the parties, from whom such explanations might have been received, is dead, and his representatives have been obliged to make up his case from his papers as they found them. Such a case seems to be peculiarly fitted for the broad and equitable jurisdiction of a jury over the evidence of a cause, and the belief they will give to it. It should not be altogether overlooked, too, on a question of granting a new trial, addressed to the discretion of the court, which discretion takes for its guide the justice or injustice to the parties that will follow the allowance or refusal of a second trial, that, in this case, the defendants have relied, and must always rely, on the knowledge and testimony of a single witness; that he lives at an immense distance from this place of holding the court, and was, probably, brought here at a great expense; that his presence can hardly be expected again; and that his evidence was of a nature to require a personal examination at the bar, and could not be taken with satisfaction to either party in any other way. Such circumstances would strongly dispose .me to let this verdict stand, although in some instances the jury have not drawn the same conclusions from the evidence that I should have done, and have made some allowances to the defendants, which I should have refused, were I not, on a careful review of the disputed items of this account and the decision of the jury upon them, constrained to say that-1 find some in which the jury have, in my opinion,,rendered their verdict against the plain principles of law. or against the clear and unquestioned evidence of the ease. Such errors I am bound to correct, and must be governed by higher considerations even than those which I have stated in support of the verdict. The court must never suffer its controlling power over a verdict to be prostrated, nor the particular circumstances or even the justice of any case, to overthrow the general principles established for the adminstration of the law, and the security of the rights of all.

The motion for a new trial in this case is made on the part of the United States. The reasons filed, exclusive of the general or. formal ones, are six in number. The first, second, fifth, and sixth, relate to the allowance by the jury of certain disputed credits claimed by the defendants in their account, as to. which there was evidence .given both for and against them, and they were left by the court to the jury on their evidence and equity. Upon these I shall say no more than that I cannot interfere with the opinion of the jury in such cases. As to the fifth, the most important of them in amount, I will remark that the disbursements here charged to the United estates were actually made and paid by Mr. Duval to the blacksmith James McDavid. The objections made on the part of the United States to the right of McDavid to this money, or, at. least to that part of it which he charged for his striker, are very strong and have not been well answered or explained; but, on the other hand, as no pretence is made of any fraud or collusion between Mr. Duval and McDavid, and the propriety of the charge itself is not so absolutely disproved as to fix upon Mr. Duval an imputation of gross and culpable negligence, and he actually paid the money, I cannot say that the jury were wrong in allowing it. Why should Mr. Duval have paid this money to McDavid if he did not think it honestly due to him? He knew he took the hazard on himself of its being allowed to him or not in the settlement of his account. To the general remark I have made on the first reason, which relates to the loss of a horse, I will add that the witness said he knew the horse died in the service which brought the charge within Mr. Stewart’s rule of allowance: but I told the jury that if they thought the horse died in consequence or by reason of the service, the charge should be allowed, but not if the loss was owing to the fault or negligence of the owner, even if the horse was in the service at the time. As to the three hundred dollars paid to Pierre Perra as an interpreter at Washington, which is the subject of the second reason for a new trial, I am free to say that I should not have allowed it, and I gave my reasons for this opinion to the jury; but they have thought otherwise, and I cannot say that they had not a right to do so. It was, in my mind, a strong circumstance against this charge, that the money was not paid by Mr. Duval to Perra, nor, as far as I recollect the evidence, ever demanded of him by Perra. It was paid since the death of Mr. Duval, one may almost say gratuitously by his administrator, and three years after the service was performed for which it was demanded. The service was in 1828, the payment in June, 1831. Such things certainly cast a shade over the charge, but the jury have been satisfied that it is correct, and their decision upon it must stand.

The two items, on which I have not been able to find a satisfactory support for the verdict, are the third and fourth. The fourth has not been argued on this motion, because it is understood that the defendants will eon-sent to correct the verdict’by adding to it the amount of this item, to wit, two hundred and seventy dollars and thirty-five cents. It arose. on a claim made by Mr. Duval for disbursements for improvements on the property called the “Cherokee Reservation,” before its sale. Such a charge upon the United States for disbursements on property not belonging to them, but of which both the title and possession were in the Cherokees, was directly contrary to every principle of law, charging one party for improvements on the property of another. Nor did Mr. Duval himself ever consider this an expenditure chargeable to the United States, or introduce it into any account against them. The charge was to the “Cherokee Reservation.” Mr.- Murray, the defendants’ witness, who was the confidential clerk of Mr. Duval, and from whom we have derived all our knowledge of the transactions of his agency, says expressly, that he believes Mr. Duval considered the Cherokee Nation as responsible to him for these improvements; that he considered the whole matter to be between the Cherokees and himself, and not with the government. This allowance of this charge against the government, is as much against the evidence as the law of the case. As the counsel for the defendants have given up this part of the verdict on my suggestion, at the argument, I owe it to them to explain more fully the reasons of my opinion. By the treaty of the 6th of May, 1828, the Cherokee Indians made a cession of territory to the United States, with a special reservation of a certain part of it. In relation to this it was stipulated that the part reserved, with all the improvements on it, should be sold by the United States, and the proceeds of the sale be applied to the benefit of the Indians on the new territory to which they removed. The sale was made. Mr. Duval was the purchaser at the price of two thousand and fifty dollars; this he paid to the United States, and they appropriated it, according to their agreement, for the benefit of the Indians on their new territory. This sum, so received and so applied by the United States, was the whole proceeds of the sale as well of the lands included in the reservation as of all the improvements made thereon, for which improvements the sum of two hundred and seventy dollars and thirty-five cents, now claimed by the defendants, was expended by Mr. Duval, while the land belonged to the Indians, at their request and on their credit and responsibility. It is now contended, or was so at the trial of this cause, that the United States must not only pay to the Indians the proceeds of their land and improvements, but must further pay a debt they owe to Mr. Duval on account of those improvements, that is, in feet they are to pay twice for them, once by handing to the Indians the whole amount they brought at a public sale, and now again by paying for them to the person at whose cost they were made. When Mr. Du-val made these improvements he did so on the credit of the Cherokees, and had no idea of having any claim on the United States for them.

When Mr. Duval made the purchase of this reservation he was the agent of the United States to these Indians. It was, since his death, on a suggestion of the illegality or impropriety of his being a purchaser at this sale, surrendered by his representatives to the United States, and they received back the money he had paid for it. Does the agreement with the United States to cancel this purchase, and the transfer of his right to the United States, raise an equity to support this claim, because the land and the improvements thereby became the property of the United States? I can see nothing in this arrangement which raises an equity against the United States for the charge in question. If the purchase made by Mr. Duval was illegal by reason of his agency, his representatives gave up nothing when they cancelled it, and made the transfer to the United States. If, on the other hand, the purchase was legal and their right to the land complete, the surrender of it was a voluntary act, made freely and without condition, or any intimation of receiving any thing more from the United States than a return of the money Mr. Duval had paid for it, which, it may be, was better for them than the land. If it was the intention of the representatives to claim any more, either directly or as a credit in their account with the government, they should have said so, and the United States, the other party to the bargain, could have said whether they would assent to it or not. The only consideration that appears in the agreement, the only one that was recognised by both of the parties, or even thought of, as far as we know, by either of them, was the repayment of the sum of two thousand and fifty dollars, which Mr. Duval had given for the land. If an individual. instead of the government, had made this agreement with Mr. Duval, and had paid him the stipulated consideration, could he have been afterwards charged with an old debt which the Cherokees owed to Mr. Duval, for the same improvements on the land which were paid for in the sum of two thousand and fifty dollars, given for the whole? I told the jury that I was very clear that this item ought not to be allowed, on any principle of law or equity, and it is as clearly against the evidence.

The matter alleged for a new trial, in the third reason, requires a fuller explanation of the evidence which relates to it. It is thus stated: “Because the jury allowed the claim of the defendants for four hundred and sixty-six dollars and sixty-four cents for forage of horses of the said Edward W. Duval for four years and upwards, although the defendants were not entitled by law to such allowance; although there was evidence that the said Edward W. Duval never claimed the same in his lifetime; and although the court charged the jury unfavorably to such allow-anee.” The charge or credit, claimed by the defendant in this item, is for foraging two horses from the 1st of January, 1826, to 31st of August, 1830. In the examination of Mr. Murray, the witness of the defendants, to support this charge, he says, that these horses were employed in the service of the United States, and were necessary for it. He thinks the charges are moderate. They were Mr. Duval’s horses; he had his farm horses besides; these were kept for public service, such as travelling through the Nation, and to send expresses. He says, he knows of no such allowance to other agents. Mr. Duval had not the same horses all the time. He knows of no authority from the secretary of war to Mr. Duval to keep these horses.

On this evidence, given by the defendants to support this claim, these observations present themselves: (1) That the charge is for a period of four years and eight months; during which period, nor, indeed, at any time in the lifetime of Mr. Duval, was any charge for keeping these horses introduced by him into his accounts sent to or settled with the department, nor any claim made for it in any way by Mr. Duval. This circumstance affords some ground, I might say strong ground, to presume that he never considered it a charge which he had a right to make, or intended to make, against the government, and it stands, in this respect, on a similar, footing with the charge for the improvements on the Cherokee reservation. (2) If these horses were really kept for the public service, and were necessary for it, and were so thought and intended by Mr. Duval, the cost or purchase of them would have been, at least, as fair a charge upon the government as their forage; but they were Mr. Duval’s horses, bought with his private funds, and no reimbursement of their price was ever asked by Mr. Duval, or is even now asked from the United States. This is another circumstance to show how this transaction has been understood by Mr. Du-val himself. (3) The same horses were not kept through the whole period, but no account is raised with the United States for the sale or the loss of the horses he parted with, nor for the purchase of their substitutes: (4) This is a regular, continued charge for a long period, and not for horses required or employed, from time to time, in the public service, on emergencies which allowed no opportunity to consult.the department at Washington, and obtain the permission of the secretary for the expenditure; nor do they appear to have been procured or wanted for any such emergencies, but to have been used for travelling through the Nation or in sending expresses, in the performance of the ordinary duties of the agent.

Before w'e take up the evidence of Mr. Stewart and Col. McKenney on this subject, let us turn to the act of congress which has a direct bearing upon it, and whose provisions, we must presume, were found to be necessary to prevent or restrain abuses upon the treasury, in the undefinable shape of extra allowances, which might grow out of these agencies without the means of detecting or checking them in detail. By the first section of the act of April 20, 1818, the salaries of the several Indian agents are appointed; and by the third section it is enacted: “That the sums hereby allowed to. Indian agents and factors shall be in full compensation for all their services; and that all rations, or other allowances made to them, shall be deducted from the sums hereby allowed.” The legal rights or claims of an agent upon the United States are thus circumscribed by the law, but there exists in the war department a power to make allowances to an agent, unprovided for by law, when the secretary shall think them to be just and equitable, and not forbidden by any law. Under this power, certain usages have grown up in the department, which have become the law of the department, and on which an agent has a right to rely, in the exercise of his-functions. That which has been uniformly allowed to others, he may presume will be allowed to him, and if he performs a service, or makes an expenditure of this description, he has a right to expect an allowance for it. The defendants have endeavoured to bring the charge we are now considering, within the protection of the usage of the war department. To effect this they have produced the testimony of William Stewart and Col. McKenney. Mr. Stewart has been a clerk in the war department from 1818 to 1832; he says it has been invariably the custom to allow salary officers extra for services not within the scope of their offices. He mentioned the case of Governor McMinn, who received eight dollars a day and other allowances, as a commissioner to value the improvements of the Cherokees, and received at the same time his salary as governor. In this case it is evident that the appointment as a commissioner was entirely distinct from that of governor; the duties of the stations were wholly independent of each other. The service as a commissioner was clearly not within the scope of his office of governor. It is no example or precedent in this case. So of the case of Col. McKenney. In 1827, this gentleman, then at the head of the Indian bureau of the war department, whose office and duties were at Washington, was sent by the government among the Indians to make treaties, and to reconcile some differences among the Creeks. He acted as a commissioner in forming a treaty, and received pay as a commissioner for the time he was treating, and his travelling expenses, and, at the same time, his salary as superintendent of the Indian bureau. This case is analogous to that of Governor McMinn, but not to the charge made on behalf of Mr. Duval. I am aware that this part of Mr. Stewart’s testimony was applied more particularly to other charges in the defendant’s account than to this; but as it may have some bearing on this also, I have made this reference to it. In relation to this item, to wit, the foraging the horses, this witness says, that no allowance was made for keeping horses, unless specially agreed upon by the secretary. If a horse is wanted for an emergency requiring prompt execution, as expresses, there is a discretionary power with the agent to employ one, but, in general, no allowance was made for horses, unless specially authorized. When this witness gives the example of expresses, he must be understood to mean an express on an emergency requiring prompt execution,, and not an ordinary message sent on ordinary business.

In the ease of.Col. Crowell, given by this witness, the question was deliberately considered. He was the agent of the Creek Indians, and brought a charge of two hundred and fifty dollars a year for horses, for the use of the agency, for four or five years. It was allowed by the then acting secretary of war. This was-' in' 1828. He was also allowed for the' cost or purchase of the horses. Thus- he carried the whole thing through as the concern of the government, charging them for keeping what he alleged to be their horses, bought and kept for the use of the agency; and not, as in this case, for keeping horses admitted to be his own. The comptroller, in settling Col. Crowell’s account, refused to pass this charge; and so it remained suspended, until it was finally, within the last eighteen months, rejected by the secretary of war. This seems to have settled the practice or usage of the department, or to have been in conformity with it, for, the witness says, several agents brought in similar claims, but they were all. rejected. What this witness says about allowances being sometimes made on honour, on the character of the officer, clearly relates to a deficiency in the vouchers, and1 not to the admissibility of the charge.’ The whole bearing of this testimony is opposed to the credit claimed for Mr. Duval. He had no special authority from the secretary for the purchase or keeping of these horses; no evidence has been given to show that they were procured or kept or employed for any emergency in the public service so sudden and pressing that no application could be made for them to the secretary, consistent with the service. On the contrary, they were kept for nearly five years, not only without any request to, or permission from the secretary to warrant it, but without any intimation to him that such horses were in the employment of the government, or in the possession of their agent.

The testimony of Col. McKenney does not change this aspect of the case. He says, that an agent in the Indian country was not obliged to conform in all respects to the voucher system, and he gives a good reason for it. In speaking of the discretionary power, which, Col. McKenney believes, was vested in an agent, he explains himself by putting a case of emergency in which it would be impossible to get the instructions of the government; and he says, “under such circumstances it was expected of him to exercise a sound discretion, and to move in the case.” He would then be allowed in his account “a reasonable expenditure in such an enterprise.” This, the witness says, applies to any extraordinary occurrence within or without the agency, as if horses or canoes are wanted, they are allowed for. He says, the agent has to pay Indian annuities in specie; that horses are wanted to transport it; and adds, that a horse, sometimes two, is allowed for the use of the agent in his own personal intercourse with the different divisions of his agency; that two horses were generally considered to be a reasonable allowance for an agent; the horses to be bought by the government, and to be their property. This general allegation of such an allowance was qualified by the witness, in his answer to a question of the court, in which he said, an agent would not be allowed for keeping horses, unless It was specially allowed by the secretary of war, by which I understand that, when he said before that "two horses were generally considered to be a reasonable allowance for an agent,” he meant that the allowance must be first obtained from the secretary, except in cases of emergency, and not that the agent might procure and keep the horses at his discretion, and afterwards make them a charge, as a matter of right, against the government.

I have looked through the evidence, in vain, for something by which I could, judicially, support the verdict of the jury in this particular. The charge of the court was very explicit against it, and, on a careful review of the case, I see no reason to change the opinion I had at the trial. By admitting this charge; we should introduce a new rule and principle in the settlement of the accounts of Indian agents, which may be very extensive and mischievous in its consequences. If the defendants had a right to this credit, I should not regard its disallowance by the accounting officers of the government, who necessarily trahsaet their business by established rules, which cannot always conform to the right and justice of every case; but these defendants have tried to justify this charge, not by any positive law or legal right, but in the equity of an alleged usage of the department of war, when it is dear no usage exists there to countenance the claim.

After the delivery of the above opinion, the defendants’ counsel appeared in open court, and agreed that judgment be entered for the United States of America, for one thousand and eighty-five dollars and twenty-eight cents, in conformity with the opinion of the court. Judgment accordingly for the United States of America, for one thousand and eighty-five dollars and twenty-eight cents,