Fenemore v. The United States. 3 D. ration set forth, in consideration thereof he undertook and faithfully promised that the said account was a just and true account, and that the sum mentioned in it was lawfully due from the United States and ought to be so certified, and that the said certain paper writings then and there exhibited as further vouchers for issuing the said certificate, were regular and lawful vouchers. Nevertheless, the defendant did not regard his said last mentioned promises, inasmuch as the said account was not true, nor was any part thereof due, nor were the said paper writings lawful vouchers, by means whereof the United States were by him deceived and greatly injured. The third count having stated an assumpsit in the usual form, for $8,000 received to the plaintiff's use, concluded, that the defendant not regarding his several promises for making payment thereof, had not paid the said sum of money, but refused, and still refuses to pay the same, to the damage of the United States $8,000. The defendant pleaded non assumpsit, whereupon issue was joined; and on the trial of the cause, the jury found a special verdict of the following tenor: "The jury find that the commissioner named in the first and second counts, was the lawful officer of the United States for transacting the business therein mentioned; and that certain regulations were made by congress in relation thereto, on the 20th of February, 1782, and the 3d of June, 1784, to which the jury refer. That the defendant on the 2d of August, 1784, fraudulently exhibited an account, claiming a balance of 1,602l. 11s. 7ęd. ; equal to $4,273 49-90, as due from the United States to him, which account so fraudulently exhibited, and the vouchers therefor, the jury set forth at large. That then and there the defendant received through fraud and imposition, from the United States, the said balance so as aforesaid falsely pretended to be due to him in a certificate, which the jury set forth in its proper words and figures. That the defendant gave a receipt for the same in the words and figures set forth by the jury. That according to law the defendant, on the 12th of May, 1791, subscribed and funded the said certificate in the funds of the United States, and became a holder of the stock it produced, amounting, with the interest, to $4,893 8-90; and that he gave to the United States a receipt. for funded debt comprising the said certificate, which was thereupon delivered up and cancelled. But whether the said subscription, the subsequent funding of the said $4,273 49-90, with the interest of $619 59-90, and the stock acquired in virtue thereof as aforesaid, ought to be allowed as payment of the amount of the said certificate by the said United States to the said defendant, the said jurors know not; and thereupon they pray the advice of the court here in the premises. *And if it ought to be allowed, then [359 ] Fenemore v. The United States. 3 D. they say he was paid the full amount, to wit, $4,893 8-90. And the jurors further find, that prior to the year 1791, the United States had paid part of the interest due on the said certificate, amounting to $1,025 58-90. That the defendant on the 2d of August, 1784, undertook and promised to the United States, that the said account was just and true; that the sum of $4,273 49-90 was justly due to him from the United State, and ought to be so certified; and that the vouchers produced by him in support of the said account were regular and lawful vouchers for issuing and delivering the said certificate to him. That the said account was not just, nor was the sum specified to be due therein, or any part thereof, justly due, but the said account was fraudulent, and the vouchers produced by him in support thereof, were not regular and lawful vouchers for issuing and delivering to him the said certificate. And whether on the whole matter by the jurors so as aforesaid found, the plaintiff ought to recover against the defendant, they are ignorant, and pray advice of the court. And if upon the whole matter, &c., it shall appear to the court that the defendant did assume in manner and form as the United States complain, then they say he did assume upon himself, &c., and they assess the damages by reason of the non-performance of his promises and assumptions aforesaid, $3,939 70-100, besides costs and charges; and for costs and charges ten cents. But if it appear to the court that he did not assume, &c., then they say he did not assume, &c. And if upon the whole matter aforesaid, by the jurors found in the manner aforesaid, it shall appear to the court that the defendant did assume as to the sum of $1,025 58-90 so as aforesaid paid by the United States, in part of the interest so due on the said certificate, funded as aforesaid, &c., then they find he did assume, &c., and assess the damages of the United States by reason of the non-performance of the promises within mentioned, besides costs and charges, at $1,023 64-100,1 and for costs and charges ten cents. But if upon the whole matter, &c., it shall appear to the court that he did not assume in construction of law, in manner and form as the United States complain, then they say he did not assume as to the said $1,025 58-90, &c." Upon this verdict the circuit court rendered the following judgment, on the 2d of April, 1795:-"That the United States do recover against the said Thomas Fenemore, their damages aforesaid, by the jurors aforesaid, in form aforesaid, assessed at $4,965 34-100; and also, $169 43-100 for their costs and 1 There seems to be a variance between the sums, but no notice was taken of it in the argument. Fenemore v. The United States. 3 D. charges, by the court *here to the United States, with their [* 360 ] assent, of increase adjudged; which said damages in the whole amount to $5,134 77-100. And the said Thomas in mercy, &c." The cause was argued at the last term, upon an issue joined, after an assignment of the general errors, and the plea of in nullo est erratum, by Ingersoll and E. Tilghman, for the plaintiff in error, and by Lee (the attorney-general) for the United States. It was then alleged in diminution, however, that a rule had been made, by consent, in the court below, which was not transmitted with the record, allowing special counts to be added to the declaration, and agreeing "that no objection should be made to them by reason of their being of such a nature as not to be joined with the first or any other counts;" in consequence of which the two special counts above stated had been added. A certiorari was, therefore, awarded at the instance of the attorney-general, upon the return to which, at the present term, the rule was duly certified.' *On the 7th of August, 1797, the judges delivered their [* 363 ] opinion to the following effect: CHASE, J. The judgment of the circuit court ought to be affirmed. Here is the case of a plain fraud. A man sets up a claim, exhibits colorable vouchers to support it, deceives the public officer, obtains a certificate that his claim is just, and finally, converts that certificate into transferable stock. The transaction is rank from the beginning 1 It became a question, whether the return to a certiorari (which was made in this instance, by the clerk of the circuit court under his hand and the seal of the court) was within the rule established at the last term (ante, p. 356,) relative to the return of writs of error? CHASE, J. It appears to me, that the cases are embraced by the same principle; and, therefore, that the return of the certiorari ought to be allowed. IREDELL, J. I cannot think, that a regulation respecting writs of error, extends, of course, to writs of certiorari. They are process whose nature and operation are in some respects widely different. The present case, therefore, seems to require a new rule. PATERSON, J. I will not decide, whether, generally speaking, writs of error will include writs of certiorari; but as to the present object, they are clearly within the principle of the same rule. CUSHING, J. It is enough for the present purpose, that the principle of the rule applies as strongly to the return of a certiorari, as to the return of a writ of error. ELLSWORTH, C.J. By the rule, it was made the duty of the clerk of the circuit court to return the writ of error, and as the writ of error is not returned, unless all the proceedings in the cause accompany it, the return to the present certiorari can only be considered as completing the duty imposed by the original rule, in pursuance of a supplementary order from this court. Fenemore v. The United States. 3 D. to the end; and the jury have properly found not only the fraud, but the value of the certificate obtained by it. The United States, by adopting the present mode of proceeding, have precluded themselves from ever disputing hereafter the validity of the certificate; and they will never, perhaps, be able to indemnify themselves against the subsequent payments of interest, unless Fenemore remains solvent, and accessible to legal process. But surely it ought never to have been a subject of argument in a court of justice, whether, on stating a manifest fraud practised upon the public credit and treasury, the United States is entitled to recover an equivalent for the pecuniary injury, from the avowed delinquent. IREDELL, J. I am clearly of the same opinion. Upon strict technical rules, I had, at first, some doubts whether the inconsistency of the counts in the declaration would not be fatal; but on the appearance of the rule entered into by consent, for the very purpose of obviating objections on that ground, my mind was perfectly satisfied. The only question, therefore that remains to be decided, [ * 364] turns upon the right of the United States to affirm the original transaction; and if they have that right, it follows, inevitably, that they ought to recover from the defendant an equivalent for the value of the certificate, which was surreptitiously obtained. I have no difficulty in saying that the right exists, and that the public interest, involved in the credit of a public paper medium, required the exercise of the right in a case of this kind. The circulation of the certificate should be unimpaired; but the defendant ought, at least, to be made responsible in his purse for the fraud. The defence is, indeed, an extraordinary one. It is an attempt to make the very act of fraud an instrument or shield of protection. But, I trust, no man will ever be able to defend himself in an American court of justice upon the ground of his own turpitude. As therefore every exception to form has been obviated by consent, and as the special verdict finds every material fact to justify the judgment of the court below, I think that judgment ought to be affirmed. CUSHING, J. The cause is susceptible of little doubt. The United States had a right to affirm the original transaction, and to proceed, as they have done, for the recovery of the value of the certificate and the interest. ELLSWORTH, C. J. Giving a reasonable effect to the rule which the parties themselves have entered into, all objection, as to the form and inconsistences of the declaration, is obviated. Then, it is to be 1 Brown v. Barry. 3 D. considered, that the United States had an option, either to affirm, or disaffirm the original contract; and by the present action they have chosen to affirm it. The special verdict fairly authorized the court below to give judgment for the value of the certificate on the first and second counts, and for the amount of the money received as interest on the third count. With respect, however, to the right of disaffirmance, I wish to be understood as limiting it to the continuance of the certificate in the hands of the original party, for, if the certificate had passed into the hands of a bona fide purchaser, even a court of equity would, I think, refuse to invalidate it; and, I am sure, public policy would forbid the attempt. PATERSON, J. As I joined in giving the judgment of the circuit court it gives me pleasure to be relieved from the necessity of delivering any opinion on the present occasion. But, though I have no doubt on the case now to be decided, it appears to me to be another, and a great question, how far a bill in equity would reach all the points involved in the original transaction. Judgment affirmed. BROWN, Plaintiff in Error, v. BARRY. [ *365 ] 3 D. 365. A repealing act, and an act suspending it, passed at the same session, are to be construed so that both may have effect, if possible. The Virginia act of 1785, declaring the commencement of acts to be from the day on which they in fact pass, does not apply, because both laws were passed at the same session, and the question is, whether one changes the other, and this is the special case provided for by the 3d section of the act of 1789. Where the act of 1785 does not apply, the rule in the British parliament, that acts of the same session have effect from the same day, obtains in Virginia. In a count against the drawer for non-payment, it is not necessary to aver that the bill was accepted, or if not accepted that it was protested for non-acceptance.1 Under the Virginia act of 1775, the actual consideration, though different from that stated on the face of the bill, governs, and the jury having found that to be such as to take the case out of the statute, the statement on the face of the bill is immaterial. If the jury find specially the value of foreign money, the want of an averment of the value in the declaration is cured. In such case a declaration in the debet is not erroneous. 1 Clark v. Russell, 3 D. 415. |
