A bond to the United States, conditioned that a property and disbursing officer of the War Department shall faithfully discharge his duties and faithfully account for public money and property committed to his charge, takes effect on the day when it is accepted by the government, and is to be regarded as of that date.
When it appears that such a bond, duly signed by sureties, had been offered to the government official and rejected by him as not bearing seals, and that it was taken away by the property and disbursing officer, the principal, and returned with proper seals, it will be presumed, in the absence of proof to the contrary, that the seals were attached with the consent of the sureties.
The order of the Secretary of War directing the execution of such a bond was one which he had power to make, and, being made, the disbursing officer was bound to have it executed and filed.
The Chief Signal Officer had the right to designate one of the officers under him as a property and disbursing officer to whom should belong the custody of all government property and funds pertaining to the office of the Chief Signal Officer, and he further had the power, under the general direction of the Secretary of War, to provide that such officer should be responsible for the due execution of his official duties, and, a bond having been given for such faithful performance, and such officer having been guilty of the forgery of vouchers and the embezzling of public moneys officially received by him, such conduct was a plain violation of his duty as such officer, and the condition of the bond, as it plainly covered such conduct, was violated thereby.
A certificate given to such disbursing officer before the discovery of his fraud that his accounts had been examined, found correct, and were closed, did not operate to release him or his sureties from liability on the bond.
There was no delay in the commencement of the proceedings against the disbursing officer which injured the sureties or operated to release the latter from their liability under the bond.
were admissible in evidence as sufficient transcripts within Rev.Stat. § 886, and the certificate which certified that the papers annexed thereto were true copies of the originals on file, and of the whole of such originals, was a full compliance with the law.
Under circumstances like those disclosed in this case, the account between the government and its officer may be restated, and the sums allowed him on fraudulent vouchers disallowed.
The judgment recovered against the officer was admissible in evidence in an action against the surety on his bond although the latter was no party to it.
"an officer retiring from service shall, before final payment, produce certificates from the several accounting officers of nonindebtedness to the United States, and make an affidavit upon the final voucher, stating in addition the correctness of its several items, the place of his residence, and that he is not indebted to the United States on any account whatever."
being the amount of moneys unlawfully drawn and obtained by him on the United States Treasury, a list of which was set forth in the "particulars of demand" accompanying the declaration.
Upon affidavits setting up certain facts showing the false and forged character of the vouchers, an attachment was issued in the action, and certain property of his was attached.
The defendant appeared by attorney, and finally, on the 24th day of May, 1883, upon motion of the district attorney, judgment in favor of the United States against the defendant for want of a plea was granted, and judgment entered in favor of the plaintiff against the defendant for $101,257.08, with interest thereon from August 24, 1881.
By virtue of this judgment, the property which had been seized by virtue of the attachment issued in the action was sold, and the sum of $28,000 was realized upon such sale, and the amount thereof credited upon the judgment.
This present action was commenced on the 29th of September, 1884, on a bond alleged to have been executed by the defendants named in the action, being Henry W. Howgate, William B. Moses, and Lebbeus H. Rogers. Of these defendants, Mr. Moses was the only one served with process.
"on the second day of April in the year of our Lord 1878 at the district aforesaid, by their certain writing obligatory of that date, sealed with their seals, and now here in court produced, jointly and severally bound and acknowledged themselves to be indebted to the plaintiff in the sum of twelve thousand dollars, to be paid to plaintiff on demand, yet, though requested, the said defendants have never paid the same to plaintiff, but have wholly neglected and refused, and still do neglect and refuse, so to do."
Judgment for the sum was then demanded.
Washington, D.C., and Lebbeus H. Rogers, New York City, New York, are held and firmly bound unto the United States of America in the sum of ($12,000) twelve thousand dollars, lawful money of the United States, to be paid to the United States, for which payment well and truly to be made, we bind ourselves, and each of us, our and each of our heirs, executors and administrators, for and in the whole, jointly and severally, firmly by these presents."
"Sealed with our seals. Dated the ___ day of March, in the year of our Lord one thousand eight hundred and seventy-eight, and of the independence of said states the one hundred and second."
"The condition of this obligation is such that, whereas the above-bounded First Lieutenant Henry W. Howgate, 20th Inf't'y, has been assigned to duty as a property and disbursing officer, Signal Service, U.S.A., _____ has accepted said assignment:"
"Now, if the said 1st Lieutenant Henry W. Howgate, 20th Infantry, shall and doth at all times henceforth and during his holding and remaining in said office carefully discharge the duties thereof and faithfully expend all public money and honestly account for the same and for all public property which shall or may come into his hands on account of Signal Service, U.S. army, without fraud or delay, then the above obligation to be void; otherwise to remain in full force and virtue."
"Signed and delivered in presence of"
"Witnesses as to Lebbeus H. Rogers"
"Witness as to W. B. Moses"
New York on the 13th day of March, 1878. It also contained the justification of Mr. Moses as surety, and purported to have been sworn to by him on the 14th day of March, 1878, at Washington, D.C. The bond also contained the endorsement of Chief Justice Cartter of the Supreme Court of the District of Columbia, certifying that satisfactory evidence of the sufficiency of the sureties to the bond had been given, and that he approved the same.
A second count to this declaration was subsequently added, in which the appointment of the defendant Howgate to the signal office at Washington, his assignment to duty there as property and disbursing officer, the execution of the bond bearing date the ___ day of March, 1878, its delivery and the condition contained in such bond, the receipt of a large amount of public moneys, and the failure to expend and honestly account for the sum of one hundred and thirty-three thousand and odd dollars, were all set forth at length and in detail.
The defendant Moses filed several pleas setting forth substantially the defenses: (1) that the alleged writing was not his bond; (2) that it was extorted from Howgate without any authority of law; (3) that there was no such office created by law as was mentioned in the bond, and no duties pertaining to the office prescribed by law, or by any regulation or order of any department or officer, and that the alleged bond was void for uncertainty; (4) that the accounting officer of the Treasury had duly settled the accounts of Howgate and issued to him a certificate of nonindebtedness to the Untied states, of which the defendant Moses had notice, which discharged him from liability as surety on the bond; (5) that Howgate had kept and performed the condition of the bond.
"First Lieutenant H. W. Howgate, 20th infantry, brevet captain, U.S.A. acting signal officer's assistant, is hereby assigned to duty 'as property and disbursing officer' at this office, together with such other duties as may be assigned to him."
"In compliance with what I understand to be the wishes of the department, I have the honor to enclose herewith a bond similar in amount and form to that given by captain of the commissary department."
"except in that it wants the formal seals required to be affixed to the signatures of the obligor and sureties by standing order of the War Department of June 11, 1869,"
objections. The government then proceeded to give evidence to show the breach of the condition of the bond by producing transcripts of books and proceedings of the Treasury Department, which it claimed were properly certified under section 886 of the Revised Statutes of the United States, and by producing witnesses upon the question of the forgery of the vouchers by Howgate.
Various other questions arose upon the trial in regard to requests to charge, which are sufficiently referred to in the opinion.
The jury found a verdict for $12,000, with interest from September 29, 1884, and the defendants, the administrators, having filed an admission of sufficient assets when administered to satisfy the recovery, judgment was, on the 1st day of April, 1893, entered upon the verdict.
The defendants' motion for a new trial for errors in law and upon exceptions taken was denied, and upon appeal to the Court of Appeals the judgment was affirmed, and the defendants now seek a review of that judgment by this Court.
Various errors are assigned in this Court, the first two of which allege that error was committed -- first, in admitting the alleged bond in evidence, there being a material variance in date between the instrument offered and the one described in the declaration; second, in admitting the alleged bond in evidence when there was no evidence tending to prove that it was sealed by W. B. Moses.
the second count of the declaration, the bond sued on was alleged to have been dated the ___ day of March, 1878. The bond was offered in evidence while that count stood, and, as it showed no variance when compared with the second count, the defendants' counsel said that they were justified in making no objection to its admission at that time on that ground. When in the course of the trial the second count was withdrawn by leave of the court, it left but the original first count in the declaration, and thereupon the defendants moved to strike out the bond that had been admitted in evidence upon the ground that the bond declared upon in the first count of the declaration is described as a bond bearing date on the second day of April, 1878, and the bond which was theretofore offered in evidence by counsel for complainant purports to bear date on the ___ day of March, 1878. The motion was overruled, and defendants' counsel excepted, and it is that exception upon which defendants' counsel now claim a reversal of the judgment.
It is seen by reference to the foregoing statement of fact that the bond was finally sent back by Howgate to the Secretary of War, with seals attached, in a letter dated April 1, 1878, and that it was approved -- that is, accepted -- April 2, 1878. It is settled that a bond of that character takes effect on the date of acceptance, and it is from that time that it speaks. United States v. Le Baron, 19 How. 73; same case, on another review, 71 U. S. 4 Wall. 642, 71 U. S. 647.
There is no claim made that there ever was any other bond than the one put in evidence, nor that the defendants were surprised or in any way misled by the difference in the date of the bond from the date alleged in the declaration. The objection is one of the most extreme technicality, and does not in any way reach the merits of the case.
3d of October, and oyer being prayed, the bond appeared to bear date of the 3d of January preceding. By the oyer, the bond was made a part of the declaration. He said there were several pleadings, and among the rest a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. He then said the variance between the date of the bond declared upon and that of the oyer is fatal. But the principle of that case has nothing to do with that involved in the case at bar. The question here does not arise on demurrer, but in the course of a trial upon the merits. The bond having been declared upon as dated the second of April, 1878, is produced, and is shown to bear date the ___ day of March, 1878. Otherwise it is the same bond in description as that declared on, with no claim of there being any other bond, and with the proof that the bond in question, although dated on the ___ day of March, was not accepted by the War Department until the second day of April, 1878, at which time it became a completed instrument, and from which time it took effect. It is plain to be seen that no possible harm or injury could occur to the defendants from disregarding this variance.
no variance between the allegations of a pleading and the proofs offered to sustain it shall be deemed material unless it be of a character to mislead the opposite party in maintaining his action or defense on the merits. Irrespective of those statutes, however, no variance ought ever to be regarded as material where the allegation and proof substantially correspond."
We think this exception is without merit.
2. We are also of opinion that there was no error in admitting the bond in evidence under the objection that, at the time it was admitted, there was no evidence tending to prove that it was sealed by Mr. Moses. Passing the objection raised by the defendants in error as to the form of pleadings, and referring to the foregoing statement of facts, it appears that at the time the bond was first tendered to the War Department, it had been signed and acknowledged by the principal and his sureties, and the latter had each made an affidavit justifying as to his financial ability to become such surety, and that Howgate had presented the bond (without seals) to the Secretary of War as in compliance with the directions of the War Department.
The instrument being incomplete when first sent to the department, there was no acceptance of the same at that time. Its return by the department with the objection stated did not in any sense make Howgate the agent of the government to procure seals to the instrument. The government undertook no such mission, and it was not under any obligation so to do. It stood indifferent whether Howgate procured those seals or not. He was under obligation to present a proper bond to the department, and if he did not do so, the department would take its own measures consequent upon that failure.
to secure the proper performance of duty by the obligors in such bonds. This principle, we think, is illustrated in the cases of Dair v. United States, 16 Wall. 1, and Butler v. United States, 21 Wall. 272.
When the officers of the government received this bond for the second time, and the seals were then found upon it, there was nothing to attract their suspicion that the bond was not a proper instrument, executed in due form by all the obligors. The fact that it had once been presented without seals, and then, when the objection was taken to that defect and the instrument returned to Howgate on that account, it was thereafter again sent in by Howgate, one of the obligors, with the seals affixed thereon, was not a circumstance of suspicion, nor one to raise any doubt as to the consent of the other obligors to the placing of the seals upon the instrument signed by them. Being originally signed by them for the purpose of acceptance by the government, there is no fact upon which a presumption could be based that they would refuse to make the instrument complete by adding their seals when it was found that they had been theretofore omitted.
The cases cited by counsel for the defendants do not impair the strength of this principle nor do away with the presumption. Among the cases cited are Follett's Heirs v. Rose, 3 McLean 332. The case involved but a question of fact, which was submitted to a jury, whether an instrument that was produced on the trial, and had no seals attached to it, had had them attached when the instrument was originally executed many years prior thereto. Edelin v. Sanders, 8 Md. 118, 129, contains nothing inconsistent with the presumption that the seals in this case were affixed with the consent of the obligors.
In State v. Humbird, 54 Md. 327, the bond sued on had no seal opposite the name of one of the obligors, and there was no evidence that he had adopted the seal of any of the other parties to the instrument. It was held that the instrument was not his bond because, in fact there was no evidence of any seal belonging to him ever having been affixed and no such seal was on the instrument when it was produced on the trial.
In Chilton v. People, 66 Ill. 501, a bond was sued on, while the instrument produced had no seal. It was held that the fact that the instrument contained the statement "sealed with my seal," when there was no seal or scroll did not supply the defect of its absence.
was declared on as such an instrument, the action upon it could be maintained.
In United States v. Nelson, 2 Brock. 64, the parties to the bond were sureties, and signed in blank before the principal, but with full knowledge of the purpose for which the bond was to be executed. The blanks were afterwards filled up in their absence without express authority from them, and given to the officers of the United States, who accepted it. It was held by Marshall, C.J., "with much doubt, and with a strong belief that this judgment will be reversed," that the law is for defendants. Under the cases of Dair, 16 Wall. 1, and Butler, 21 Wall. 272, it would seem as if the doubts of the great Chief Justice were not entirely misplaced.
Not one of these cases lays down any principle which shows the ruling of the court below in this case to have been erroneous.
We come back, then, to a case where the proof was uncontradicted of a signing of an instrument, reciting that it was sealed (when in fact it was not), and that, when sent to the obligee, it was returned in order that seals might be affixed. It will, in the absence of evidence to the contrary, be presumed, when the bond is again presented with seals, that they had been inadvertently omitted, and that the sureties had consented to their being placed upon the instrument in order to make it effective -- a purpose which they must have originally intended when they executed it. Any other presumption would tend to show that the sureties, when signing the instrument, intended an idle thing -- that is, to sign a paper which would not answer the purpose for which it was then executed -- or else they intended a fraud upon, and to act dishonestly towards, the government. Neither presumption should be indulged in. The presumption called for under the circumstances is the one which is based upon the view that the principal and the sureties intended to act honestly, and to execute an instrument which would be accepted by the government.
final due execution arose from the evidence given on the part of the plaintiffs, and, as none was given in explanation or in contradiction of it, the presumption was sufficient in law to base a finding of that fact thereon. We think that no sufficient objection in regard to the sealing of the bond was shown, and that this assignment of error is therefore not made good.
3. Another objection to the validity of the bond is taken by the defendants, which is that the bond was extorted colore officii, and is void for that reason. The defendants allege that there was no statute or regulation directing or permitting the exacting of a bond from an officer of the Army assigned to duty in the Signal Service at Washington, and discharging the duties of "property and disbursing officer," and that therefore the bond exacted from Lieutenant Howgate was void. Defendants' counsel offered to prove that sometime after he had been assigned to his position the Secretary of War, through his chief clerk, directed that Lieutenant Howgate, before receiving moneys upon requisitions made by him, should file a bond as particularly stated, and if he failed to file such bond, that he should be relieved from duty as disbursing officer; that Lieutenant Howgate protested against this requirement for various reasons, which he stated to the chief clerk, who informed him that the Secretary of War had made his decision upon the question involved after due deliberation, and had directed that unless he filed the required bond, he should be relieved from duty as disbursing officer; that after receiving this information from the chief clerk, Lieutenant Howgate forwarded to the War Department the bond upon which this suit is brought. The evidence was rejected, and exception taken by counsel for the defendant. It is now urged that such evidence was material; that it showed that the bond was improperly and illegally extorted from Lieutenant Howgate under fear of losing his position as property and disbursing officer, and that the bond is therefore void.
We think the evidence was properly excluded, although there was no statute specially providing for the execution of a bond by one occupying the position of Lieutenant Howgate.
The order of the War Department that a bond should be executed was one which the Secretary of War had power to make.
"for no officer of the government has a right, by color of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with a condition different from that prescribed by law."
"That a voluntary bond taken by authority of the proper officers of the Treasury Department, to whom the disbursement of the public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursery of public moneys, is a binding contract between him and his sureties and the United States, although such bond may not be prescribed or required by any positive law. The right to take such a bond is, in our view, an incident to the duties belonging to such a department, and, the United States having a political capacity to take it, we see no objection to its validity in a moral or a legal view."
See also United States v. Maurice, 2 Brock. 96; Jessup v. United States, 106 U. S. 147, where the same views are set forth.
The consideration or the condition of the bond must not be in violation of law; it must not run counter to any statute; it must not be either malum prohibitum or malum in se. Otherwise, and for all purposes of security, a bond may be valid, though no statute directs its delivery.
bond when it is not demanded by any particular statute or regulation based thereon, and when it is not exacted in violation of any law or valid regulation of a department. Having the right to take a bond, the government, in a case like this, has the right to demand it from the officer, and to say to him that, if he do not give it, he will not be continued as "a property and disbursing officer of the Signal Service." Such a demand, when complied with, does not amount to the illegal exaction or extortion of the bond. The case of a bond so procured differs radically from a case like that of Tingey, supra, inasmuch as the bond in the latter case was extorted from a reluctant officer, with a condition therein contained different from that which the statute called for.
The power of the government to take bonds in cases of this nature in the absence of any law or general regulation to that effect, but by direction of the head of a department, was recognized again in the case of United States v. Bradley, 10 Pet. 343, 35 U. S. 359. In that case, the bond taken contained conditions beyond those provided for in the act of Congress, yet it was held that those conditions which were within the act were valid, and could not be regarded as extorted from the obligor, although they were set forth in the same instrument which contained other and illegal conditions. The case of Tingey, supra, was cited by the Court and approved as to the principle that the United States may take a bond as security, etc., when not in violation of any statute.
having the right to take a bond, had the right to demand it under penalty of refusing to permit him to longer remain as a disbursing officer, or to further receive public moneys for disbursement by him. An action brought in the Southern District of New York by the United States against Rogers, one of the sureties on this same bond, was decided in favor of the government by the United States district court, 28 F. 607, and that judgment was affirmed by the United States Circuit Court in the Southern District of New York, 32 F. 890. On writ of error to this Court, the judgment was affirmed, but not on any ground affecting the merits. Both the district and circuit courts held the bond was good, and adjudged accordingly.
We are, in view of all the facts, of opinion that the refusal to admit the evidence offered by defendants' counsel upon this issue did not constitute any error on the part of the learned trial court.
4. Another objection taken by the defendants is that this bond is void for uncertainty because there was no law creating any such position as that "of property and disbursing officer of the Signal Service, U.S.A.," nor any law or Army regulation defining the duties of any such officer.
On the 10th of June, 1872, one of the appropriation bills was approved, in which was an appropriation of $250,000 to provide materials and to pay for telegraphing the weather reports under the authority and regulations of the Secretary of War, and on the 27th of June, 1872, the War Department directed, in a written communication addressed to the chief of the United States Signal Corps, that such officer, and all persons who had been or should be thereafter designated and employed by him for the taking of meteorological observations, etc., were thereby recognized and appointed as agents of the War Department for those purposes. By the Army appropriation act of 1874, 18 Stat. 72, it was enacted that the Signal Service should be maintained as then organized under the authority of the Secretary of War. Thereafter, and on the 25th of July, 1876, Lieutenant Howgate, then Acting Signal Officer and assistant at Washington, was duly assigned by the Chief Signal Officer to duty as "property and disbursing officer" at the Signal Officer at Washington, with such other duties as might be assigned to him. Appropriations of a similar nature to that above mentioned for the Signal Service have been constantly made by Congress ever since.
"the head of each department to prescribe regulations not inconsistent with law for the government of his department, the conduct of its officers and clerks, and distribution and performance of its business, and the custody and use and preservation of the records, papers and property pertaining to it."
Section 1094 of the Revised Statutes recognized the existence of the Chief Signal Officer of the Army of the United States, and section 1195 gave to that officer the rank of colonel of cavalry, and directed that, under the direction of the Secretary of War, he should have charge of all signal duty, and of all books, papers, and apparatus connected therewith.
"faithfully expend all public moneys, and honestly account for the same, and for all public property which shall or may come into his hands on account of the Signal Service of the United States Army without fraud or delay."
When he was guilty of the forgery of vouchers and the embezzling of the public moneys received by him as said officer, there can be no doubt or uncertainty that such conduct was a plain violation of his duty as an officer, and that the condition of the bond certainly and plainly covered such conduct, and was violated thereby.
property and disbursing officer of the Signal Service, and (2) that he should faithfully expend all public money, and honestly account, etc., as already stated. The condition that he should carefully discharge the duties of the office might, perhaps, be regarded as somewhat vague on account of the uncertainty as to what constituted all of those duties, but there is neither vagueness nor uncertainty in the other condition above stated. If the first condition were to be held void for uncertainty, there is no valid reason for holding that the second condition is also void, although not at all uncertain. When the cause of action consists in a breach of that particular condition of the bond which is plain, definite, and certain, there is no reason for denying a recovery because of the uncertainty of another condition which need not be referred to in order to sustain the action.
"What proof was there that it was the duty of Howgate, under a bond with a penalty of $12,000, to receive and disburse the enormous sums charged against him in the 'consolidated transcript,' aggregating the sum of $1,132,742.32, in the brief period of about two years?"
upon the receipt and disbursement of public moneys, it might well have been thought that the amount demanded was sufficient. Reference was also had in the letter from the War Department to the amount of the bond demanded of a commissary of subsistence having the same rank, though in a different branch of the service, and also charge with the receipt and disbursement of large amounts of public moneys. A bond in the same penalty as that given by such an officer was evidently supposed to offer sufficient security for the government. Although, when the bond was executed, it might not have been supposed that the officer would have such large sums to disburse, that fact forms no defense to an action on the bond, which was conditioned for the honest disbursement of the public moneys, whatever might be their amount.
So far as this cause of action is concerned, the bond is not void for uncertainty, and the exception of the defendants is unsustained.
5. The defendants also claim the existence of error in the decision of the court below that the settlement of Howgate's accounts was not a bar to the action. The evidence shows that his accounts had been regularly stated and passed upon by the accounting officers of the Treasury, and a certificate given him of nonindebtedness. These facts, the defendants say, were matters of record in the Treasury Department, and they urged that the plaintiff should therefore be estopped from maintaining this action.
To the same effect is the objection that the government is estopped from maintaining this suit by the inequitable representations and conduct of their agents which misled the surety Moses to his prejudice.
to obtain the necessary certificates. He procured from the third auditor of the Treasury Department various certificates under dates of October 1, December 10 and 23, 1880, January 6 and April 26, 1881. These certificates were for different quarters for the years 1879 and 1880, and certified that the auditor had examined and adjusted the account of H. W. Howgate, Lieutenant 20th infantry, A.S.O., and found the same balanced, "as appears from the statement and vouchers herewith transmitted for decision and certification."
"Third Auditor's Office, April 26, 1881"
"It is hereby certified that the accounts and returns of H. W. Howgate, Lt. 20th Inf., late Acting Signal Officer, U.S.A. have been examined, found correct, and are closed."
"This certificate is granted to satisfy the pay department that the above-named officer is not indebted to the United States on the books of this office at the date hereof."
Certificates similar in their nature were obtained from the officers of the Chief of Engineers, the Quartermaster, the Ordnance Department, Second Auditor's Office, the Paymaster's and the Commissary General's Departments. Each certified substantially that Howgate "was not charged on the books of that office as a debtor to the United States," or "that his returns had been received, examined, and found correct," or "that there were no charges remaining against him on the books of the office."
of the books in each department. Undoubtedly they were prima facie evidence of the facts they certified to, and, in the absence of any evidence of mistake or of fraud attacking the integrity of the items, or any of them, appearing on the books, and upon which the certificates were based, they would be conclusive in favor of the officer in any action against him. Soule v. United States, 100 U. S. 8, 100 U. S. 11; United States v. Bell, 111 U. S. 477; Ex Parte Randolph, 2 Brock. 447, 475; United States v. Eckford, 1 How. 250, 42 U. S. 263; United States v. Hunt, 105 U. S. 184, 105 U. S. 187. They would not, however, be conclusive as against evidence of the forgery of any vouchers upon which the accounts had been founded and the settlement arrived at. This is too plain for argument.
It is urged, however, that even if the certificates and books upon which they were based would ordinarily be open to explanation, and would not be regarded by the courts as conclusive, the rule is nevertheless changed in this case by the action of the officers of the government, by reason of which the government is estopped from showing the falsity of the certificates and the forgery of the vouchers. The government is charged with laches in failing to take proper means of enforcing its demands against Howgate, and in failing to promptly notify the sureties of the fact of his defalcation and of their liability to respond on that account to the extent of the penalty of the bond.
on checks drawn by him on the Treasurer for the amount stated, aggregating the amount sued for in the action. The defendant appeared in the action by attorney, and finally judgment for want of an answer was entered on the 24th of May, 1883, and $28,000, subsequently realized on the sale of the defendant's property, was credited on the judgment.
The suit had been commenced in the Supreme Court of the District of Columbia, and Howgate, the defendant, and Moses, one of the sureties on his bond, were residents of the City of Washington in that District, and had been for many years. It is impossible to suppose that the fact of the alleged defalcation of Howgate was unknown to Moses. The record shows that a personal service upon Howgate was not obtained for the commencement of the action against him, which would imply an inability to discover him within the District or else his absence therefrom. The affidavit used upon obtaining the attachment showed that Howgate was aware of the investigation going on in relation to his accounts, and that, with such knowledge, he suddenly, and without declaring any other business or reason for leaving, left the District without indicating how long he would remain, or when, if ever, he would return. The presumption is very strong from all these circumstances that Moses, after Howgate's departure from Washington, knew of the alleged defalcation, and of the suit brought by the government against Howgate. There can be no well founded claim that such suit was not commenced promptly, and there is no evidence that it was not prosecuted with due diligence, even though no answer had been put in up to the time when the judgment was taken. Various reasons might have existed for the delay between the commencement of the action and the entry of judgment, which cannot be said to have been unusual. There is nothing in the fact that the government sued Howgate alone, without calling upon the sureties in the bond which would operate to the injury of the sureties. And there is no evidence that the sureties suffered any damage by reason of any action or lack of action on the part of the government.
presumption that the sureties had any knowledge that these certificates had ever been given to Howgate, either at the time of or soon after his resignation, or at all. The case of United States v. Alexander, 110 U. S. 325, does not hold that there is any such presumption. In that case, the Secretary of the Treasury having abated taxes against the defendant, under an act of Congress, the Commissioner of Internal Revenue gave notice of the fact to the principals in the bond, who then gave the same notice to their sureties, and the case was not decided on the ground of any presumption of knowledge on the part of the sureties as to the abatement.
The case here is entirely barren of evidence that the sureties had knowledge of any fact going towards their exoneration, or that they acted or failed to act in any particular with reference to their principal by reason of the conduct of the government officials or the existence of the certificates mentioned. We are of opinion also that no such exonerating fact existed.
this case rests. The exception of the defendants upon this ground cannot prevail.
6. The defendants also took exception to the decision of the court below in permitting plaintiff to introduce certain transcripts of the books and proceedings of the Treasury Department for the purpose of proving the actual state of the accounts between the government and Howgate. These transcripts were objected to on two grounds: (1) that they showed on their that they were mere statements of balances, and not the entire account between the parties; (2) that they showed that the government officers had made a restatement of Howgate's account after he ceased to be property and disbursing officer, and that there was no authority for making such restatement, and that it was not evidence against the defendants. We think that neither objection is well founded.
"examined and adjusted the account of H. W. Howgate, Lieutenant 20th infantry, property and disbursing officer Signal Service U.S. Army, from April, 1878, to September, 1880, and found the balance as follows"
to be the full account between the parties. Following that summary or "consolidated account," however, are the transcripts from the books of the Treasury Department containing the account of Howgate, "property and disbursing officer, Signal Service of the United States, with the United States," including items of credits and of disbursements. In other words, both sides of the account are given in these transcripts, and also the items of difference -- that is, those items of credit which had been originally claimed by and allowed to Howgate, but which were subsequently disallowed by the accounting officers of the government on a restatement of the account, were given in full. This restatement had been made in 1884, on the ground that many of the vouchers for items that had been formerly allowed Howgate were forged or otherwise fraudulent. Copies of the alleged fraudulent vouchers are also set forth. If, therefore, the so-called "consolidated settlement" were inadmissible as not being a full account, it was wholly immaterial, because the same facts would appear from an examination of the account between Howgate and the United States, both sides of which were contained in the other transcripts accompanying that consolidated settlement.
We think the certificate as to those transcripts was entirely sufficient, and the transcripts themselves were admissible as sufficient transcripts from the books and proceedings of the Treasury Department, within section 886, Rev.Stat., and that the certificate which certified that the papers annexed to the transcript were true copies of the originals on file, and of the whole of such originals, was a full compliance with law. United States v. Pinson, 102 U. S. 549; United States v. Bell, 111 U. S. 477.
from liability on the bond. Howgate, for the purpose of obtaining payment of his own salary, had procured certain statements from various departments, acknowledging that, by the books of those departments he did not appear indebted to the government, and by virtue of those certificates he had obtained final payment of his salary; but subsequently to that time, when other facts became known, causing an investigation into the state of the accounts, it became apparent that Lieutenant Howgate at the time when he obtained these certificates of nonindebtedness, was in truth a defaulter, and that he owed the government over a hundred thousand dollars. After the final payment of his salary, when these facts became known, the acting Chief Signal Officer made up a statement of the account between Howgate and the government which showed in detail the vouchers and checks which were known to be fraudulent, with the names of witnesses, etc., which statement was sent to the Secretary of War, together with a report of the officer making up the account showing the true state of the account. After that time, and in compliance with the request of the Solicitor of the Treasury, the Secretary of War sent to the Second Comptroller of the Treasury this statement of the account, together with a copy of the report of the Acting Chief Signal Officer which accompanied it, and the Secretary stated that the papers were forwarded to the Second Comptroller with a view to a restatement of the accounts of Howgate for use in a suit on his bond of April 2, 1878.
was enabled to procure the certificates of nonindebtedness above referred to. The idea that, under circumstances like these, there would be no power in the officers of the government to restate an account between the government and an officer by disallowing credits given him upon false and forged vouchers cannot be entertained for a moment. The cases already referred to in this opinion dispose of such a claim.
7. One other objection was taken upon the trial, and that was to the admission of the judgment recovered against Howgate by the government.
Neither surety was a party to that judgment, which was solely against Howgate, and the record in that case was admitted in evidence under the objection and exception of the defendants. We are of opinion that the judgment was properly admitted in evidence against the surety. It proved, at least prima facie, a breach of the bond by showing the amount of public moneys which Howgate, the principal, had failed to faithfully expend and honestly account for. It was far beyond the penalty in the bond, and, unexplained, the judgment was sufficient evidence of the breach of condition. Drummond v. Executors of Prestman, 12 Wheat. 515; United States v. Allsburg, 4 Wall. 186; McLaughlin v. Bank, 7 How. 220; Stovall v. Banks, 10 Wall. 583; Washington Ice Co. v. Webster, 125 U. S. 426.
* United States v. Alexander, 110 U. S. 325; Harris v. Brooks, 21 Pick. 197; Carpenter v. King, 9 Met. 511; Baker v. Briggs, 8 Pick. 131; Taylor v. Lohman, 74 Ind. 418; Thornburg v. Madren, 33 Ia. 380; Chambers v. Cochran, 18 Ia. 159; Gordon v. McCarthy, 3 Whart. 406; Brooking v. Farmers' Bank, 83 Ky. 431; Aaron v. Mendel, 78 Ky. 427; 1 Greenl. Ev. § 207.


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Art. 6 para. 1 lit. a, EU General Data Protection Regulation (GDPR) serves as the legal basis to the extent we obtain the consent for processing the personal data of the person concerned. Art. 6 para. 1, sentence 1 lit. b GDPR serves as the legal basis for the processing of personal data required for performance of the contract if the party to the contract is the person concerned. This also applies to processing operations required to carry out pre-contractual actions. Art. 6 para. 1 lit. c GDPR serves as the legal basis to the extent processing of personal data is required to fulfill a legal obligation to which our company is subject. Art. 6 para. 1 sentence 1 lit. f GDPR serves as the legal basis for processing if processing is necessary to protect the legitimate interests of our company or a third party and if the interests, fundamental rights and freedoms of the person whose data is being processed do not predominate.
The personal data of the person concerned will be deleted or blocked as soon as the purpose of storage no longer applies. However, data storage may extend beyond this period if such is stipulated under European, domestic, EU laws or other regulations to which the person in charge of processing the data is subject. Blocking or deletion of the data also takes place if a storage period prescribed by the aforementioned standards expires, unless there is a need for further storage of the data for the conclusion or fulfillment of a contract.
The data will be deleted as soon as it is no longer required for the purpose it was collected. This is the case after each session is completed if data is collected for providing the website. The data is also deleted after a maximum of seven days if the data is stored in log files. A storage period beyond this is also possible. In this case, the IP addresses of users are deleted or distorted so that they no longer can be traced to the visiting client.
The legal basis for the processing of personal data using cookies is Art. 6, para. 1 f. GDPR.
The transmission of Flash cookies cannot be prevented by the settings of the browser, but by changing the setting of the Flash player.
E-Mail addresses are available on our website for users to request contact.
There is no transfer of data to third parties in this connection. The data is used exclusively for the processing of the conversation.
The data will be deleted as soon as it is no longer required for the purpose it was collected. This is the case for the personal data from the E-Mail after the respective conversation with the user has ended. The conversation is ended when it can be inferred from the circumstances that the relevant facts have finally been clarified.
The Google Marketing Services allow us to target the use advertisements for us and on our website so that ads are only displayed that potentially match the interests of the users.
Our web site uses so-called web fonts provided by Google LLC, 1600 Amphitheater Parkway, Mountain View, CA 94043, USA ("Google") for consistent font presentation. When you access a website, your browser loads the required web fonts into your browser cache to display texts and fonts correctly.
Google is certified under the Privacy Shield Agreement, which guarantees compliance with the European Data Protection Law.
For this purpose, the browser you use must establish a connection with the Google servers. As a result, Google recognizes that our website has been accessed via your IP address.
The use of Google Web Fonts is in the interest of the consistent and appealing presentation of our online services. For these purposes, our legitimate interest also comprises the processing of the data according to Art. 6 para. 1 lit. f GDPR.
For more information about Google Web Fonts, visit https://developers.google.com/fonts/faq and Google's data protection policy: https://www.google.com/policies/privacy/.
On our website we use the "+1" button on the Google Plus social network operated by Google Inc., 1600 Amphitheater Parkway, Mountain View, CA 94043, United States (Google). The button is indicated by the symbol "+1" on a white or colored background.
If the customer presses the "+1" button, the customer's browser establishes a direct connection to Google's servers. The content of the "+1" button is transmitted by Google directly to the customer's browser and incorporated by the latter into the website. We have no influence on the amount of data that Google collects with this button.
Google+ is used to facilitate communication with the visitor. For these purposes, our legitimate interest also comprises the processing of the data according to Art. 6 para. 1 lit. f GDPR.
According to their own information, the log data collected by Google is anonymized by deleting a part of the IP address and the cookie information after 9 and 18 months respectively.
If users do not agree to the transfer of their data to Google in connection with the use of Google+, it is possible to log out at Google+ before using our site.
On our website we use functions of the Twitter service. These functions are provided by Twitter Inc., Twitter, Inc. 1355 Market St, Suite 900, San Francisco, CA 94103, USA. Through the use of Twitter and the "Retweet" function the websites you visit are linked to your Twitter account and disclosed to other users. Data is also transmitted to Twitter at this time.
The data storage period is unknown to us.
If users do not agree to the transfer of their data to Google in connection with the use of Google+, it is possible to log out at Twitter before using our site.
On our website we use plugins of the social network LinkedIn of the LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, (hereinafter "LinkedIn"). The LinkedIn plugins are identified by the LinkedIn logo or the "Share Button" ("Recommend") on this website. When you visit this website, a direct connection between your browser and the LinkedIn server is established via the plugin. LinkedIn then receives the information that you have visited this website with your IP address. If you click the LinkedIn "Share" button while logged in to your LinkedIn account, you can link the contents of this website to your LinkedIn profile. This allows LinkedIn to associate the visit to this website with your user account.
The use of LinkedIn is to facilitate communication with the visitor and to improve our public image. For these purposes, our legitimate interest also comprises the processing of the data according to Art. 6 para. 1 lit. f GDPR.
If you are a LinkedIn member and do not want LinkedIn to link the data collected through our website to your LinkedIn membership information, you must log out of LinkedIn before visiting our website. Information on the collection and use of the data by the platform or plugins can be found in the data protection policy information: https://www.linkedin.com/legal/privacy-policy?_l=de_DE.
Users can request a confirmation from the person in charge of processing data, as to whether or not personal data concerning themselves is being processed by us.
Users have a right to rectification and/or completion visa-vie the person in charge of processing data, if the processed personal data concerning themselves is incorrect or incomplete. The person in charge must make the corrections immediately.
If users have objected to the processing of data according to Art. 21 para. 1 GDPR and it is not yet certain whether the legitimate reasons of the person in charge of processing data outweigh the rights of the user.
If restriction to process data has been inhibited under the above conditions, users will be notified by the person in charge of processing data before the restriction is lifted.
Personal data concerning users is no longer required for the purposes it was collected or otherwise processed.
Users revoke their consent to the processing of their data, which was based on Art. 6 para. 1 lit. a or Art. 9 para. 2 lit. GDPR, and there is no other legal basis for processing.
Users object to the processing of their data according Art. 21 para. 1 GDPR and there are no overriding legitimate grounds to continue processing, or they object according to Art. 21 para. 2 GDPR.
Personal data concerning users has been processed unlawfully.
The deletion of the users' personal data is necessary for compliance with a legal obligation under European Union law or the law of the Member States, to which the person in charge of processing data is subject.
Personal data concerning users was collected with respect to information society services offered according to Art. 8 para. 1 GDPR.
If the person in charge of processing data has publicized personal data concerning the users but is now obliged to delete this data in accordance with Art. 17 para. 1 of the GDPR, he shall take appropriate measures considering the available technology and the cost of implementation, to inform those who process your personal data, that your request to delete any links to such personal data or copies or replications of such personal data has been received.
If users have the right to rectify, delete or restrict the processing of data visa-vie the person in charge of processing such data, the latter is obliged to notify all recipients who have received personal data relating to users, which has been corrected or deleted or processing restricted, unless this proves to be impossible or involves a disproportionate level of cost.
Users have the right to be informed by the person in charge of processing data about these recipients of data.
In exercising this right, users also have the right to request that personal data relating to themselves be transmitted directly from one person in charge of processing data to another, if technically feasible. In doing so, freedoms and rights of other persons may not be impaired. The right to data portability does not apply to the processing of personal data required for the performance of a task in the public interest or in the exercise of official authority delegated to the person in charge of processing the data.
The person in charge of processing data will no longer process personal data concerning users unless he can demonstrate compelling legitimate grounds for processing that outweigh the interests, rights and freedoms of the users, or the processing is intended to assert, exercise or defend legal claims. If the personal data relating to the users is processed in order to operate direct mail, users have the right to object at any time to the processing of the personal data concerning themselves for the purpose of such advertising; this also applies to profiling to the extent it is associated with such direct mail. If users object to the processing of data for direct mail purposes, the personal data of the person concerned will no longer be processed for these purposes. Users have the option in connection with the use of information society services - regardless of Directive 2002/58/EC - to exercise their right by means of automated processes in which technical specifications are used.
With regard to the cases referred to in (1) and (3), the person in charge of processing data shall take appropriate measures to safeguard the rights and freedoms and legitimate interests of the users including at least the right to intervene, to express an opinion and to contest the decision made by the person in charge of processing data.

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Art. 6
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Cabstone™ is a registered brand of the Wentronic GmbH.
The processing of personal data, such as the name, address, e-mail address or telephone number of an affected person, takes place in harmony with the requirements of the General Data Protection Regulation (GDPR) and in agreement with the country-specific data protection regulations that apply to Wentronic GmbH (DSAnpUG-EU / BDSG). By means of this data protection statement, Wentronic GmbH would like to inform you about the nature, scope and purpose of the personal data we process. The rights to which you are entitled are also explained to you in this data protection statement.
In general, you are not required to state any personal information in order to use our website. However, in order to provide our services on an individual basis, we may require personal data, such as to send informative material, ordered goods, to answer individual enquiries and register for our online services. If it is necessary to process personal data and there is no legal basis for this processing, we generally obtain the consent of the affected person.
Wentronic GmbH has implemented many technical and organizational measures in order to ensure the personal data processed via this website is protected as seamlessly as possible.
You can contact our data protection officer directly with all questions and comments on data protection at any time.
If we obtain consent from the data subject to process personal data, Art. 6(1)(a) of the EU General Data Protection Regulation (GDPR) serves as the legal basis.
When processing personal data required to perform a contract for which the data subject is a contractual party, Art. 6(1)(b) GDPR serves as the legal basis. This also applies to processing that is required to take steps prior to entering into a contract.
If processing of personal data is necessary for compliance with a legal obligation to which our company is subject, Art. 6(1)(c) GDPR applies as the legal basis.
In the event that processing of personal data is necessary in order to protect the vital interests of the data subject or of another natural person, Art. 6(1)(d) GDPR serves as the legal basis.
If processing is necessary for the purposes of the legitimate interests pursued by our company or by a third party and such interests are not overridden by the interests or fundamental rights and freedoms of the data subject, the legal basis for data processing is Art. 6(1)(f) GDPR.
Cookies are specific means of identification that can be transferred to the hard drive of your computer or other devices so that our systems can, for example, recognize your device.
Identify you automatically when you log into our website. This makes it possible to offer you targeted product recommendations and possibly other functions and services.
Display content on the Wentronic GmbH website that is specifically tailored to your interests, including advertising.
Undertake research and diagnoses to improve content, products and services.
Cookies offer the advantage that you can use much of what we offer (services/features). If you do not allow cookies to be saved or reject cookies in another manner, it is, for instance, not possible to use other products or services that require registration.
The help function in most web browsers explains to you how you can prevent your browser from accepting new cookies, how your browser indicates when you have received a new cookie, or how you disable all of the cookies you have received. You can disable and delete similar functions such as flash cookies, which are used by browser add-ons, by changing the settings of the browser add-ons or even via the website of the browser add-on manufacturer.
Besides personal data, information that cannot be allocated to a particular person, such as the browser used, the operating system, the number of visits, etc, is sometimes collected automatically when accessing our website. We exclusively collect this data for statistical purposes in order to further optimize our website and enable us to make our Internet services more attractive. Data is collected and stored in anonymous or pseudonymous form only and, as such, it is not possible to determine your identity as a natural person.
Wentronic GmbH processes and saves personal data only for the period that is necessary to achieve the purpose of storage and where this has been provided for by the European regulators or another legislator in laws or regulations, to which Wentronic GmbH is subject.
If the purpose of storage no longer exists or a storage period specified by the European regulators or another responsible legislator expires, the personal data is routinely blocked or deleted in accordance with the legal regulations.
You are entitled to receive information at any time regarding the personal data saved about you, without stating a reason and at no expense. You can have the data that has been collected by us blocked, amended or deleted at any time and object to the anonymized or pseudonymized collection and saving of data for the purposes of optimizing our website.
You can also revoke your consent for us to collect and use your data at any time without stating a reason. The processing of data remains lawful until the time of the revocation.
In accordance with Art. 77 GDPR, you have the right to submit a complaint to the supervisory body (such as to the state representatives for data protection in Lower Saxony) if you believe that the processing of your data is undertaken unlawfully.
Wentronic GmbH collects and processes the personal data of applicants for the purpose of undertaking the application procedure. Processing can also take place electronically. This is particularly the case if an applicant transfers corresponding application documents electronically, such as by e-mail, to the entity responsible for processing. If Wentronic GmbH concludes an employment contract with an applicant, the transferred data is saved for the purposes of implementing the employment relationship while abiding by the legal regulations. If no employment contract is concluded by Wentronic GmbH with the applicant, the application documents are automatically deleted six months after the announcement of the rejection decision where deletion does not conflict with other legitimate interests of the entity responsible for processing. Another legitimate interest in this sense is, for instance, an obligation to provide evidence in proceedings in accordance with the German General Equal Treatment Act (AGG).
This website of Wentronic GmbH uses Google Analytics, a web analytic service provided by Google, Inc. ("Google"). Google Analytics uses what are known as "cookies", text files that are saved on your computer and enable your use of the website to be analyzed. The information collected by the cookie on your use of this website is generally transmitted to a Google server in the US and stored there.
If IP anonymization is activated on this website, Google will truncate your IP address within Member States of the European Union or in other countries that are party to the Agreement on the European Economic Area. Only in exceptional cases is the complete IP address transferred to a server belonging to Google in the USA and shortened there. Google will use this information on behalf of the operator of this website for the purpose of evaluating your use of the website, compiling reports on website activity and providing the website operator with other services relating to website activity and Internet usage.
We would like to point out that this website uses Google Analytics with the extension "_anonymizeIp()" so that IP addresses are only processed in an abbreviated form to prevent them being directly linked to a particular individual.
Further information and the applicable data protection regulations from Google can be accessed at https://policies.google.com/privacy?hl=en and at https://www.google.com/analytics/terms/us.html.
Purpose of processing: Google will use this information on behalf of the operator of this website for the purpose of evaluating your use of the website, compiling reports on website activity and providing the website operator with other services relating to website activity and Internet usage.
Recipients/categories of recipients: The recipient of the collected data is Google.
Transfer into non-member countries: The personal data is transferred to the USA under the EU-US Privacy Shield on the basis of the adequacy decision by the European Commission.
Duration of data storage: The data sent by us and linked to cookies, user IDs or advertising IDs is deleted automatically after 14 months. Data that has reached the end of its storage duration is deleted automatically once a month.
Google Analytics is explained in more detail via this link https://www.google.com/analytics/#?modal_active=none.
The website of Wentronic GmbH uses the online advertising program "Google AdWords" and conversion tracking as part of Google AdWords. The cookie for conversion tracking is saved when a user clicks on an advertisement displayed by Google. Cookies are small text files that are stored on your computer system. These cookies lose their validity after 30 days and are not used for personal identification. If the user visits certain pages on this website and the cookie has not yet expired, Google and we can identify that the user clicked on the advertisement and was forwarded to this page. Every Google AdWords customer gets a different cookie. Cookies can thus not be tracked using the websites of AdWords customers. The information gathered using the conversion cookie is used to create conversion statistics for AdWords customers who have chosen conversion tracking. The customers find out the total number of users who have clicked on their advertisement and were transferred to a page fitted with a conversion tracking tag. However, they do not receive any information that enables users to be identified personally. If you do not wish to take part in tracking, you can object to this use by easily deactivating the cookie for Google conversion tracking via your Internet browser under user settings. You will then not be included in the conversion tracking statistics.
At the following Internet address, you will find more information about the data protection regulations of Google: https://policies.google.com/privacy.
Within our own legitimate business interests, including with regard to better consulting and supervision for our customers and more needs-appropriate product design, we transfer selected anonymized data to the market research institute GfK in Nuremberg for statistical evaluations, whereby the transfer and processing of the data takes place there while abiding by the respectively valid legal regulations on data protection. Customers can object to this transfer and use of data at any time for the future.
If you have any further questions about the collection, processing or use of your personal data, please contact us. The same applies to information, blocking, deletion or correction requests with regard to your personal data and for revocations of granted consent.

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MARTIN, Caveatrix, v. BALDWIN, Executor.
Probate of will. Randolph Superior Court. Before Judge Geer. May 23, 1959.
1. The complete file of the Veterans' Administration, consisting of numerous documents, where offered as a whole, was properly excluded from evidence, since certain of the documents in the form of letters from doctors as to the condition of the testator many years before the execution of his will--which have no relevancy to the question at issue and which are not a memorandum or record of any act, transaction, occurrence, or event made in the regular course of business of the Veterans' Administration--were inadmissible.
2. (a) Documents from the Veterans' Administration file on the testator were not admissible in evidence as having been submitted by the testator to the Veterans' Administration, where the evidence failed to show that they had been sent in by him or at his instance.
(b) Letters purporting to be signed by named persons as doctors, found in the file kept by the Veterans' Administration on the testator, a veteran, were not a memorandum or record of any act, transaction, occurrence, or event made in the regular course of business by the Veterans' Administration within contemplation of Code (Ann.) 38-711.
(c) Records of a Veterans' Administration hospital and a Veterans' Administration office, made in the regular course of the business of the hospital or office, which contain opinion evidence, conclusions, impressions, matter of conjecture, diagnoses of physicians or other parties, are not admissible in evidence under Code (Ann.) 38-711, since they are not the contemporaneous records of events, acts, transactions, or occurrences as required by the act, but are opinions or conclusions which may or may not be based upon facts, and lack that reliability of records which exist in the routine recording of facts in regular business books or other records.
(d) Photostatic copies of an Army discharge and Army clinical records, produced from a Veterans' Administration file, are not admissible in evidence under Code (Ann.) 38-711 as records made in the regular course of business of the Veterans' Administration, as they are obviously of the War Department or the Defense Department, but are not offered as such with necessary proof that they are records of that department made in the regular course of its business.
4. A record or writing is note admissible under Code (Ann.) 38-711 without the testimony of a witness whose evidence shows that the writing or record offered is a memorandum or record of all act, transaction, occurrence, or event made in the regular course of the business, and that it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.
5. The trial court was authorized to conclude that the evidence did not contain sufficient facts of mental incapacity of the testator to justify the opinion of the witness that he was insane, and there was no error in excluding from the evidence such conclusions.
6. The trial court properly directed a verdict in favor of the propounder and the will, there being no evidence to support the contention of the caveatrix that the testator at the time of the execution of the will was not of sound mind, was suffering from monomania, which resulted in the execution of the will, and that the will was executed under a mistake of fact and as a result of undue influence of Ernest Baldwin, Jr., upon the testator.
The will of Dr. James J. Martin, who died August 30, 1958, was offered for probate in the Court of Ordinary of Randolph County, Georgia, by Ernest Baldwin, Jr., who was named executor in the will. Mrs. Mary Miller Martin, the wife and sole heir at law of Dr. Martin, filed a caveat to the petition. The court of ordinary rendered a judgment in favor of the probate of the will, from which judgment the caveatrix filed an appeal to the superior court. On the trial of the case in the superior court and at the close of the evidence, the trial judge directed a verdict in favor of the propounder and the will. The exception is to the judgment of the superior court denying the motion of the caveatrix for a new trial.
The grounds of the caveat, as amended, were that, at the time of the execution of the will, the testator was not of sound mind, was suffering from monomania, which resulted in the execution of the will, and that the will was executed under a mistake of fact and as a result of undue influence of Ernest Baldwin, Jr., upon the testator. At the trial the caveatrix admitted a prima facie case and assumed the burden of proof. The errors complained of are the exclusion of certain documentary evidence and the direction of a verdict in favor of the propounder of the will.
1. The caveatrix offered in evidence the complete file of Dr. James J. Martin with the Veterans' Administration, which was identified by an employee of the Veterans' Administration as the file containing all original records of this veteran with the Veterans' Administration. These documents consume eighty pages of the record in this case, and contain an application for disability compensation filed by Dr. Martin with the Veterans' Administration on May 27, 1927; Veterans' Administration hospital records; letters addressed "to whom it may concern," giving information about certain physical aspects of Dr. Martin over a number of years, signed by named persons with the letters "M. D." following their signatures; reports of rating boards of the Veterans' Administration; reviews on appeal of these reports; and various other material. This file was offered as a whole, was objected to and was properly excluded by the court, as many of the documents were inadmissible. Sufficient to demonstrate the inadmissibility of this evidence is the following letter dated July 20, 1927, at Atlanta, Georgia, and addressed "To whom it may concern," and stating over the signature of H. C. Crawford, M. D., the following: "This is to certify that Dr. J. J. Martin of 436 Peachtree was under my professional care during the year of 1926 at which time he was suffering from acute tonsillitis. I have treated him once or twice since for impacted cerumen in ear." In a similar letter dated July 19, 1927, Dr. M. T. Harrison stated that he had treated Dr. Martin for influenza on July 24 and 25, 1926. Clearly, this evidence is of no probative value in determining whether Dr. Martin at the time he executed his will on February 27, 1958, was insane, suffering from monomania or acting under undue influence of Ernest Baldwin, Jr. Furthermore, there is no evidence that these statements were furnished the Veterans' Administration by Dr. Martin or at his request, nor were they a "memorandum or record of any act, transaction, occurrence, or event" made in the regular course of business by the Veterans' Administration within the meaning of the act approved February 15, 1952 (Ga. L. 1952, pp. 177, 178; Code, Ann. 38-711), under which act the plaintiff in error contends that this evidence is admissible. Various other items contained in the file were not admissible in evidence for reasons hereafter stated.
2. (a) After the exclusion of the Veterans' Administration file in its entirety, each individual document from that file was then offered in evidence. The claim for disability compensation, which was signed by Dr. Martin, was admitted without objection, and certain travel orders were admitted, as was a letter from Dr. Longino, which indicated that it was sent in at the request of Dr. Martin. All others were excluded.
The contention that the excluded documents were admissible because submitted to the Veterans' Administration by Dr. Martin in support of his claim for disability compensation is without merit, since there is no evidence that Dr. Martin submitted them, since the file does not indicate how they got there, and since the witness who produced them for the Veterans' Administration did not know who submitted them.
(b) A number of letters from persons signing as medical doctors, such as those described supra from Dr. Crawford and Dr. Harrison, which were in the Veterans' Administration file, with no evidence as to how they came to be in the file, were not admissible under Code (Ann.) 38-711, as they are not a "memorandum or record of any act, transaction, occurrence or event," made in the regular course of business by the Veterans' Administration. If it could be said to be a memorandum or record of any act, etc., made by the writer of the letter, it would not be admissible, for there is no testimony that it was such and made in the regular course of business by him. Some of the letters were otherwise objectionable for reasons set forth in the following division.
(c) Another class of testimony excluded included original records of the Veterans' Administration hospital and of the Veterans' Administration office, made in the regular course of business of the hospital or Veterans' Administration office handling the veterans' claims for compensation. Each of these records excluded contained either opinion evidence, conclusions, impressions, matters of conjecture, or diagnoses of physicians or other parties. The question presented is whether such evidence is admissible under Code (Ann.) 38-711, which provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term `business' shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. This section shall be liberally interpreted and applied."
The Court of Appeals in a well-reasoned opinion ( Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 99 S. E. 2d 370), held that a letter written by one who purported to be a physician to the United States Employees' Compensation Commission, which contained a diagnosis of the plaintiff's mental condition as a malingerer, was not admissible, saying in part (p. 879): "Code 38-1710 provides that the opinion of an expert witness is admissible when based upon the proven facts of the case, and our courts have uniformly held that for the testimony of an expert witness to be received, his qualification as such must be first proved. Alabama Great Southern R. Co. v. McBrayer, 65 Ga. App. 153, 157 (5) (15 S. E. 2d 563); Flemister v. Central Ga. Power Co., 140 Ga. 511, 512 (3) (79 S. E. 148). If that prerequisite is not met the opinion of the expert must be excluded. In Glover v. State, 129 Ga. 717, 718 (9) (59 S. E. 816), it was held that the witness was not necessarily an expert in a particular field of science or skill because he professed to be, nor did it necessarily follow that he was not qualified to testify as an expert because he himself was of the opinion that he was not entitled to be so accredited.
"To construe Code 38-711 to permit the admission in evidence of a letter in which is contained the diagnosis of a party's condition by a witness concerning whose qualification as an expert there is no evidence, and a memorandum opinion not signed by any person but simply enclosed in the letter, when the party in whose interest the letter and memorandum opinion are offered is not afforded the opportunity to examine either the author of the letter or the maker of the memorandum would in effect repeal Code 38-1705 and ignore opinions of our Supreme Court and of this court. Indeed, such an interpretation would mean that the new statute supersedes practically our whole system of jurisprudence."
The resolution made no change in Code (Ann.) 38-711, but merely declared the legislative intent. This "is clearly all attempt by the legislature to perform a judicial function by construing a law, and offends article 1, section 1, paragraph 23 of the Constitution of this State (Code 2-123), and is void." McCutcheon v. Smith, 199 Ga. 685 (2) (35 S. E. 2d 144). Code (Ann.) 38-711 is, in substance, an enactment of the "Uniform Business Records as Evidence Act," which was prepared by the Commissioners on Uniform State Laws and adopted with variations by a number of the States. There is a similar Federal statute, 28 U. S. C. A. 473, 1732. Various interpretations have been given these statutes by the Federal courts and the courts of several states.
In Lykes Bros. S. S. Co. v. Grubaugh, 128 F. 2d, 387, 390 (Fifth Circuit), the court in dealing with the question of admission of a hospital report under the Federal statute said: "The conclusion in the hospital report that plaintiff was fit for work was correctly excluded. The statute making such reports evidence, merely accredits the facts that they contain, it does not purport to make opinions admissible as evidence."
In an opinion written by Judge Sibley in the Fifth Circuit Court of Appeals case of England v. United States, 174 F. 2d 466, 468, the court held: "The evidence as to England's capacity to commit crime was in conflict. There was offered in his behalf, bound together under one certificate, thirty-three sheets purporting to be photostatic copies of hospital records and medical reports concerning England while he was in Navy hospitals between March, 1945, and March 20, 1946, when he was recommended for honorable discharge from the Navy. The documents so bound together were offered as a whole, objected to as a whole as hearsay, and ruled out as a whole. It is now urged that they are admissible under 28 U. S. C. A. 1732 as contemporaneous records `made in the course of any business' . . . The Navy hospitals may be said to be conducting a business within the meaning of Sect. 1732, so that the routine record of what is done with or to or for a patient is admissible. But some of the documents are England's account of his past life and are clear hearsay. Others are opinions of individual physicians, based on this past history, on his repeated absences without leave, resulting in his being tried four times by courts-martial, and on their own experience with him, the conclusion being that he suffered from mental deficiency, (organic brain disease)'. These we think are not contemporaneous records of events, but are expert opinions based in part on hearsay, with no opportunity for cross-examination."
In addition, see Lyles v. United States, 254 F. 2d 725, 731, where it is stated: "The difference between a `fact' (such as an act, transaction, occurrence or event) and an `opinion' is one of the fundamental differences in the law of evidence. A fact can be testified to by any witness, but, with a few exceptions, an opinion can be given in evidence only by an expert, and the qualifications as an expert and reasons for his opinion are part of the premise for allowing him to testify. The Shop Book Act deals essentially with facts . . . To submit to a jury a written notation of a medical opinion upon a complex and difficult matter, without presentation of any witness and without cross-examination of the author of the opinion, would be to submit as a fact the medical conclusion of a doctor without inquiry, showing, or cross-examination as to his qualifications, the data upon which he rested his opinion, or the reasoning by which he reached his conclusion. That is the vice of submitting to a jury, without a witness, hospital notations of mere opinion. Gross injustice and error could easily ensue from such a course."
(d) The court properly excluded a photostatic copy of the Army discharge of Dr. Martin and Army clinical records which were produced from the file of the Veterans' Administration. Neither of these documents was admissible under the act approved February 7, 1950 (Ga. L. 1950, pp. 73, 74; Code, Ann., 38-710), and Code (Ann.) 38-711, as a memorandum or record of an act, occurrence, or event of the Veterans' Administration, as they obviously were records or memoranda of the Defense Department and not of the Veterans' Administration, and were not offered as a memorandum or record of an act, occurrence, or event of that department, but of the Veterans' Administration. There was no proof that they were records of the Defense Department made in the regular course of business.
3. Certain microfilms of original records of the University Hospital in Augusta were admitted in evidence. A typewritten copy of the matter contained in the films made by the witness was excluded upon her testimony that the copy was not a true and correct copy of the films, as she was unable to read portions of it, one part being the name of one of the doctors. This not being a true and correct copy of what was in the films, the court properly excluded it.
4. The court properly excluded the records of Dr. Hervey M. Cleckley, as there was no evidence offered that they were the records of Dr. Cleckley made in the regular course of his business as a physician, but were mailed to the clerk of the Randolph Superior Court with an affidavit from Dr. Cleckley that they were his records. "Preliminary proof is necessary before the writing or record is admissible under this exception [Code (Ann.) 38-711]. The evidence should include identification of the writing or record by a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of business and that it was the regular course of the business to make such memorandum or record at the time of the event or within a reasonable time thereafter." Thomas F. Green, Jr., The Georgia Law of Evidence, p. 619, 313. See cases cited therein.
5. The caveatrix testified that, "During those years, particularly in 1948 and 1949, in my opinion, there were times when I would see my husband so much worse that he was purely insane." To an objection to the admission of the statement ". . . he was purely insane," the court stated, "She can give the facts she bases her opinion on. I think the objection is good at this time."
"When facts sufficient to authorize the introduction of opinion evidence of a nonexpert witness as to the mental condition are shown, such opinion evidence may be introduced." Brock v. State, 206 Ga. 397, 400 (57 S. E. 2d 279).
It is the province of the judge to determine the admissibility of evidence, and, accordingly, it is his province to determine in the first instance whether or not sufficient facts have been shown to authorize the introduction of such opinion evidence. See Potts v. House, 6 Ga. 324 (4) (50 Am. Dec. 329); Brock v. State, 206 Ga. 397 (1), supra, and cases cited. A careful reading of the testimony given by the witness prior to stating her opinion that at times in 1948 and 1949 he was purely insane shows that the judge was authorized to conclude that sufficient facts of mental incapacity had not been shown to justify the opinion of the witness. See Brumbelow v. Hopkins, 197 Ga. 247 (29 S. E. 2d 42). There was no error in this ruling.
6. After a careful review of the evidence in this case, we are of the opinion that a verdict in favor of the propounder and the will was demanded and that the court properly directed such a verdict. See Code 110-104.
Briefly, the record discloses that the testator, Dr. James J. Martin, a physician who retired in 1948, died on August 30, 1958, at the age of sixty-eight in the Patterson Hospital in Cuthbert, Georgia, of acute coronary thrombosis. He served in World War I and in 1927 filed a claim with the Veterans' Administration for disability compensation based on a condition described by him as "nerves." He was married to the caveatrix in 1932, when she was twenty-two years of age and he was forty-two. They separated in 1942 and she filed divorce proceedings, but after a few months they resumed their marital relations. They separated again in 1950, after which she did not see, visit, write, contact, or communicate in any manner with her husband. They were never divorced; and from July, 1950, he voluntarily paid her $75 per month. He executed a will on July 24, 1950, shortly after their separation, in which he left his wife $25,000, payable $100 per month, either for her life, or until she remarried. Ernest Baldwin, Jr., was named executor and was bequeathed $2,500. After certain other special bequests, the balance of the estate was left to his brothers and sisters. This will was drafted by W. L. Ferguson, attorney. On February 27, 1958, the testator executed the will, the subject matter of this litigation, in which he bequeathed $20,000 in fee simple to his wife and $2,500 to Ernest Baldwin, Jr., who was again named executor, and, after certain special bequests, the remainder was left to his sisters and a brother, excluding one of the brothers included in his first will.
Mrs. Martin testified that her husband told her of his disability of a mental nature, which, during his service in the Army, was diagnosed as psychasthenia and psychoneurosis, for which he filed claim for compensation with the Veterans' Administration; that he thought everybody was after his money; that on many occasions he threatened suicide; that he frequently became frustrated and blamed the frustrations on her; that he objected to her going out; that in 1950, in her opinion, he was partially insane; that he was treated with electric shocks for a nervous disorder in September and October, 1948, at the University Hospital in Augusta, from which he was carried to the Edgewood Sanitorium in South Carolina, where he received electric shock treatments and remained for over a year; that she herself during that time received electric shock treatments at Edgewood Sanitorium; that she was not insane but was exhausted; that there was a decided change in his personality, public and private; that he was extremely suspicious; that he got progressively worse, particularly during the years 1948 and 1949; that, after their separation in 1950, she never saw him or communicated with him again.
Dr. Edwin W. Allen, a specialist in psychiatry and a witness for the caveatrix, testified that Dr. Martin was in his hospital from April 6 to April 22, 1956; that while there he was suffering from psychoneurosis; that a person with psychoneurosis can attest accurately his environment and is considered competent; that from his observations, examination, and treatment, he would which caused him to execute the will, or any evidence to indicate that the will was executed under a mistake of fact or was executed because of any undue influence by Ernest Baldwin, Jr., upon the testator. In the will of July 24, 1950, made shortly after his separation from his wife, Dr. Martin named Ernest Baldwin, Jr., as executor and left him a bequest of $2,500. In the will at issue he again left him $2,500 and named him executor, The evidence discloses that W. L. Ferguson, an attorney in Cuthbert, drafted the first will, and that, when Dr. Martin decided to execute a new one, he sent for Mr. Ferguson and told him what changes he wanted made in the will; that those changes were made by this attorney and the will was thereafter freely and voluntarily executed by Dr. Martin. While there was evidence that Mr. Baldwin handled certain business affairs for Dr. Martin, kept books for him, and was permitted to draw checks on one bank account, the evidence also shows that he had several bank accounts and that the part of the business transacted by Mr. Baldwin constituted only a small part of Dr. Martin's business affairs. There is no evidence whatever of the exercise by Mr. Baldwin of any undue influence upon the testator in the execution of the will. The evidence demanded a verdict in favor of the propounder and the will, and the trial court properly directed the jury to find in favor of the will.
W. L. Ferguson, Joe M. Ray, Jesse G. Bowles, contra.
Lippitt & Lippitt, for plaintiff in error.
ARGUED JULY 13, 1959 -- DECIDED SEPTEMBER 11, 1959.

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