which shall be sold after the first day of July. 1820. Lands remaining unsold at the close of a public sale may be sold at private sale by entry at the land office at one dollar and twentyfive cents per acre, to be paid at the time of making such entry. No lands which have reverted or which shall revert to the United States for failure in any manner to make payment, shall be subject to entry at private sale until they shall have been first offered to the highest bidder at public sale; no such lands shall be sold at public sale for less price than one dollar and twenty-five cents per acre, nor on any other terms than that of cash payment." (Statutes of the United States at Large, 66, 67.) It would seem that the actual payment of the money forms a condition precedent both in fact and in law to the right of the receiver, register, or other officer of the executive government to part with any portion of the public lands.

If, indeed, it be competent for Gordon D. Boyd thus to appropriate $59.622.60 worth of the public domain to himself without paying for it, the task would not be difficult, on the same principle, for him thus to appropriate the balance of the land in his land district; and if he could be permitted to do so, all other receivers of public moneys could do the same in their several land districts, and thus the title of the whole public domain could pass out of the government without the payment of a dollar. The principle or practice that shall thus deprive the United States of her public lands cannot be sound or be supported by this

court.

If, indeed, it be true that the supposed defalcation of Boyd arose before the date of the bond, and from his having issued certificates for the public lands in his own name and in the name of others without receiving payment of the purchase money therefor-and it is shown by the testimony of the witnesses and the verdict of the jury that such was the manner of his defalcation may we not legitimately protest against the right of the executive government successfully to call on the judiciary to 43*] aid them in violating the legislation of Congress in this respect, and find security in the confidence that this court will never sanction such a disposition of any portion of the public domain. But what should be the course of the Land Office Department on the matter before us? We think it is easy and natural, and what their duty enjoins, and about which they will have no difficulty.

By proper proceedings to ascertain what lands have thus been entered, set aside the entries and have the lands disposed of as the act of Congress provides; these entries are nullities, and even if a patent had issued it would not affect the title of the United States. For this we beg leave to refer the court to the case of Stoddard et al. v. Chambers (2 Howard Supreme Court Reports of the United States, 318). There, it is said "no title can be valid which has been acquired against law. The patent of the defendant having been for land reserved from appropriation is void."

We may, then, certainly say that a false certificate made in violation of law and in fraud is void, and does not pass any title to the land out of the United States.

3d. The matters of the third point we think

we have sufficiently considered of in what has been said on the first and second.

The fourth point, that V. M. Garesche was the agent of the general land office to settle with Boyd, as receiver, that he made such settlement prior to the date of the bond, ascertained that the defalcation had thus accrued, and fraudulently enjoined secrecy on the officers and clerks in fraud of the defendants, we think we have sufficiently shown.

The fact is, he was such agent, and we think that the court below was bound to take notice that he was such without any direct proof. But William Dowsing, the register of the land office, says: Sometime between the 10th and 20th of May, 1837, V. M. Garesche, Esq., produced to him the letter of his appointment from the general Land Office Department of the United States, authorizing him to examine certain land offices, of which this was one; and from a knowledge derived from a frequent correspondence with the Land Office Department, I knew the letter of appointment which he produced to be genuine."

John Davies says: "Sometime in the spring or summer of 1837, the general government sent an agent, named V. M. Garesche, for the purpose of examining into the condition of the land offices." Robert E. Harris says, that "In the latter part of the spring or the first of the summer of 1837, a settlement took place in the land office, between Col. Boyd, and a man by the name of Garesche, as agent of the government, in reference to such defalcation. He had no other knowledge of the agency of Garesche, or his authority as such, except that he was recognized and regarded by the register and receiver of the land office at Columbus as such agent, and who settled with him as such." This we have thought sufficient.

*His appointment, whatever may have [*44 been its form, was not in the possession or control of the defendants. The injunction of official secrecy by Gareshe as to Boyd's defalcation, see the testimony of William Dowsing, and that of John Davies. This suppression of the fact of Boyd's defalcation was a gross fraud on the sureties, who after the defalcation became sureties. It is most probable that had the sureties been informed that Boyd had become a defaulter to the government to that large amount, they would have been sufficiently prudent never to have become responsible for him on the bond. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. (2 Howard, S. C. R., 318.) It certainly ought to defeat a false certificate.

The plaintiffs further offered the copy of another and different bond, which was objected to by the defendants; and as it releated to another, separate, distinct, and independent matter, the court very properly sustained the objection.

The plaintiffs also objected to some portions of the testimony, on account of the manner in which the several witnesses gave in their testimony, but as the objections were trivial. unbecoming the dignity of the investigation, and as the testimony is in other respects regarded amply sufficient to sustain the verdict, we have not thought it necessary to notice them in detail. When the court charged the jury that the

In view of the whole case, we are satisfied it will be seen that the said Boyd had not any money of the United States at or after the execution of the bond, but that the same had all been paid into the treasury.

That his entire defalcation arose from his fraudulently and illegally issuing land certificates in his own name, and in the name of others, without being paid the purchase money, that they ought to be set aside, and the land considered as yet belonging to the government. That it was a fraud in Garesche to conceal from the sureties the fact of Boyd's defalcation, and that the judgment of the court below ought not to be reversed, but the executive government left to the discharge of its duty in setting aside those illegal entries and certificates. 45** Synopsis of the Argument of John Henderson for Defendants.

The bill of exception filed in this case is of that form which has heretofore met, and we think deservedly, the reprehension of this court. It comprises, at length, all the testimony on both sides, and extends to 161 pages, being all the record, less 17 pages. The various parts of the testimony is chiefly objected to, with a generality of exception, which presents no specific matter of law for the consideration of this court, but devolves it upon this court to sift depositions at length, to ascertain if there be any exceptionable matter to justify the general objec

tions taken.

We should feel ourselves justified, did we think our defense made it necessary, to object that most of this extended volume of testimony is not before this court on any sufficient points of exception as to entitle it to be reviewed by this court, under the common law rules of proceeding, as a court of error. But, waiving all such objections, we shall meet the plaintiffs' case, regardless of this deficiency.

In aggregating the general objections of the plaintiffs to the five several depositions of the defendants, that they were "incompetent' testimony, and with intimations that plaintiffs' case rested on "conclusive" proof, we can reduce these objections to no other legal position, than that the defendants were estopped from denying the plaintiffs' case by any proof whatever. For surely the defendants' testimony was pertinent to the issue, and it is not objected that the deponents were not competent and disinterested witnesses. Nor can it be doubted but the jury rightly estimated this testimony as disproving the plaintiffs' case. Reduced, then, to a legal elementary principle, the sum total of these objections is, that the defendants were concluded and estopped in law from showing the truth against the fair seeming, but fictitious case the plaintiffs had presented.

To this view of the case, our first answer is, that, if this position has any foundation in law, then it was peculiarly a case in which the estoppel should have been pleaded. It was not an estoppel in pais, coming up incidentally as evidence. The supposed matters of estoppel were the treasury transcripts presented by the plaintiffs as their ground of action, and if regarded by them as records conclusive on the defendants, they should have pleaded them specially in their replication, and not joined the defendjected that the defendants should not prove their issue as joined. If, then, it be a case of estoppel, it should have been so pleaded. (6 Munford, 120; 2 A. K. Marshall, 143; 3 Dana, 103; 2 J. R., 382; 6 Pick., 364; 14 Mass., 241; 2 Blackford, 465; 2 Penn., 492.)

But we say this is not an estoppel, because neither matter of deed or of judicial record. (18 J. R., 490; 3 Wendell, 27.)

*And is not an estoppel, because there [*46 was no mutuality of obligation between the parties to the matter of estoppel. The United States were not concluded by Boyd's returns, neither by the account as stated, nor the fictitious sales of the public lands, thereby reported to have been sold. Estoppel must be mutual. (2 J. R., 382; 3 Randolph, 563.)

Boyd's returns were no stronger evidence than receipts, which never work an estoppel. (12 Pick., 557.)

But, so far from the plaintiffs' proof from the Treasury Department being "conclusive," a part, if not all of it, was clearly inadmissible as evidence at all.

The account showing settlement and balance struck by the Treasury Department against Boyd was no sort of legal proof. It resulted from no accounts and charges kept in the Treasury Department, and included no charge for money advanced or paid out of the department, but was only the result of certain treasury officers, in stating Boyd's account from reported returns, and data furnished by himself.

Now, the rule is settled in the case of United States v. Buford, and in other cases, that in a suit for money which came to the hands of a collecting officer in pais, and not received from the Treasury Department, a treasury statement, in such case, is no evidence of the debt. (3 Pet., 29; 6 Pet., 202; 5 Pet., 292; 8 Pet., 375.)

The papers certified from p. 17 to 22 of the record, are of this description, and should not have been admitted in evidence at all. (Gilpin's D. C. R., 47.)

The accounts certified from p. 48 to 55 as "true copies of the originals on file in said department," are, perhaps, by another provision of law than that which provides for certified transcripts of accounts from the treasury books, admissible as secondary proof of the facts contained, but not necessarily of a debt due, and certainly as open to correction or disproof, as accounts and receipts ever are, and having in no sense whatever any judicial verity. (See cases cited above.)

The plaintiffs' testimony shows that the alleged balance of account due from Boyd was not of money received after execution of defendants' bond, but is carried forward as “an

amount remaining on hand per last return," from the months of February or March pre ceding.

The facts, then, which we have assumed as our right to prove are, that this reported balance was a mere fiction of figures, without any reality; and that the fiction was made to figure as fact, by a device, palpably violative of the laws of the United States, in selling the public domain on credit, and charging up the price as cash received.

We have answered, that it was our province to show, and by our proof we have shown, to the satisfaction of a court and jury, that the balance of money on hand, as reported by 47*] Boyd, since the execution *of defendants' bond, was a fiction. (5 Pet., 373; 8 Pet., 399.)

We have shown by our proof, too, that this balance arose from sales made of the public land on credit, and for which no money was received.

Can this court assume, for a moment, this may be lawfully done by the mere unmeaning device of a receiver, charging up his account sales, that the price was received, when in truth it was not.

The law says credit shall not be allowed for the purchase money on sale of the public lands after 1st July, 1821. (Land Laws, 324.) That lands subject to entry shall be paid for "at the time of making such entry.' (Land Laws, 324.)

Is there any equitable license for the land officer, or this court, to dispense with the positive requirements of this law?

Now, we maintain, the provisions and requirements of this law rest in a superior and pervading public policy, and, as such, its high commands are in no sense directory, but mandatory and peremptory. Laws founded in public policy have no flexible equities authorizing any countenance to be given by the courts to their violation. Nor can it be tolerated. to meet any particular act of the citizen, that their known violation should be judicially covered up by an estoppel. Such are the English shipping acts, and so of ours; and of like high statutory policy is the system of our laws for the sale of public lands. (1 Story's Equity, sec. 177.)

In this case, then, the court will declare it to be the duty of the Land Department of our government to disregard these affected and unreal sales, consider them as void, and resume the title to the government, as unaffected by the acts now attempted to be validated; and such, in affect and principle, has been the previous decisions of this court. No title is valid if acquired against law...... A patent issued against law is void. (2 Howard, 318; 13 Pet.. 511.)

Lands not subject to sale by law do not pass, without a register's certificate and payment; and the title of the United States is not diverted or affected thereby. (13 Pet., 498.)

So, too, 11 Wheat., 384; 9 Cranch, 87. The objection to Boyd as a witness is not well taken. He was exonerated by the parties for whom he deposed, for both debt and costs, and had, therefore, no interests disqualifying him. (11 Pet., 86; 7 Cranch, 206; 7 Wheat on, 356.)

The objections to the charges and refusal to charge by the court below, we regard as wholly groundless. The court charged the full strength of the plaintiffs' case, and the other points vindicate themselves on reading. But if this court should possibly find error in the trial, then we fall back upon the first error in the judgment of the court below on the pleadings, and demand the judgment of this court on the plaintiffs' demurrer [*48 to defendants' first rejoinder, in which we think there is manifest error in the court's judgment against us. JOHN HENDERSON, Attorney for Defendants.

Mr. Justice NELSON, after reading the statement in the commencement of this report, proceeded to deliver the opinion of the court:

When this cause was formerly before the court, involving a question arising out of the pleadings, it was held that the condition of the bond was prospective, and subjected the sureties to liability only in case of default or official misconduct of the principal occurring after the execution of the instrument; and that if intended to cover past dereliction of duty, it should have been made retrospective in its language; that the sureties had not undertaken for past misconduct. (15 Pet., 187.)

The case is now before us, after a trial on the merits, and the question is, whether or not any breach of duty has been established which entitled the government to recover the amount in question, or any part of it, against the sureties within the condition of the bond as already expounded.

Since the verdict rendered under the instruction given by the court below, we must assume that the whole amount of the $59,622.60, of which the receiver is in default to the government, accrued against him in consequence of the entry of public lands in his own name, and in the name of others, without the payment of any money in respect to the tracts entered in his own name, and without exacting payment of others, in respect to the tracts entered in their names; and all happening before the 15th June, 1837, the date of the bond. So the jury have found.

The fraud, thus developed, was accom plished at the time by means of false certifi cates of the receipt of the purchase money by the receiver, which were given by him in the usual way, as the entries for the several tracts of land were made at the register's office, and also by entering and keeping the accounts with the government the same as if the money had been actually paid as fast as the lots were entered. The monthly or quarterly returns to the proper department would thus appear unexceptionable, and the fraud concealed until payment of the balances should be called for by the government.

According to the finding of the jury, therefore, the whole of the money, of which the receiver is claimed to be, and no doubt is, in default, and for which the sureties are and ought to be made responsible, were not only not in his hands or custody at the time of the execution of the bond, but, in point of fact, never had been in his hands at any time before or since. No part of it was ever received by

anybody. The whole of the account charged 49*] was made up by means of fabricated certificates of the receiver, and false entries in his returns to the government.

The Act of Congress of the 24th of April, 1820, sec. 2 (3 Statutes at Large, 566), provides “That credit shall not be allowed for the purchase money on the sale of any of the public lands which shall be sold after the first day of July next; but every purchaser of land sold at public sale thereafter shall, on the day of the purchase, make complete payment therefor; and the purchaser at private sale shall produce to the register of the land office a receipt from the Treasurer of the United States, or from the receiver of public moneys of the district, for the amount of the purchase money on any tract, before he shall enter the same at the land

office."

The acts of the receiver, out of which the defalcation in question arose, were in direct violation of this provision of law, and constituted a breach of official duty, which made him liable at once as a defaulter to the government, and would have subjected his sureties upon the official bond, if one had been given, covering this period. It was doubtless by some accident that the bond was omitted, as it will be seen by reference to the Acts of Congress, 3d March, 1833, sec. 5 (4 Statutes at Large, 653), and 3d of March, 1803, sec. 4, and 10th of May, 1800, sec. 6 (2 Statutes at Large, 75, 230), that a bond with sufficient sureties should have been given by the receiver before he entered upon the duties of his office.

It is clear, therefore, that the defalcation had accrued, and Boyd had become a defaulter and debtor to the government before the present sureties had untertaken for his fidelity in office, unless we construe their obligation to be retrospective, and to cover past as well as future misconduct, which has already been otherwise determined.

Whether a receiver can purchase the public lands within his district in his own name, or in the name of others for his benefit, while in office, consistent with law and the proper discharge of his official duties, it is not now necessary to express an opinion.

The register is expressly prohibited (Act of Congress, 10 May, 1800, sec. 10, 2 Statutes at Large, 77), and it would have been as well if the prohibition had included the receiver.

One thing, however, is clear, and which is sufficient for the purpose of this decision, the act of Congress, forbidding the sale of the public lands on credit, makes no exception in favor of any officers. He must purchase, if he purchases at all, upon the terms prescribed. If this is impracticable, it only proves that the duty of the receiver is inconsistent and incompatible with the duty of the purchaser, which might amount to a virtual prohibition. But, if otherwise, and the receiver allowed to purchase, the money must be paid over, as in the case of other purchasers, and deposited at the time of the purchase with the other moneys received and held by him in trust for the gov ernment. The public moneys in his hands 50*] constitute a fund, which it is his duty to keep, and which the law presumes is kept, distinct and separate from his own private affairs. It is only upon this view, that he can be

allowed to purchase the public lands at all, consistently with the provisions of the act of Congress.

It has been contended that the returns of the receiver to the Treasury Department after the execution of the bond, which admit the money to be then in his hands to the amount claimed, should be conclusive upon the sureties. We do not think so. The accourts rendered to the department of money received, properly authenticated, are evidence, in the first instance, of the indebtedness of the officer against the sureties; but subject to explanation and contradiction. They are responsible for all the public moneys which were in his hands at the date of the bond, or that may have come into them afterwards, and not properly accounted for; but not for moneys which the officer may choose falsely to admit in his hands, in his accounts with the government.

The sureties cannot be concluded by a fabricated account of their principal with his creditors; they may always inquire into the reality and truth of the transactions existing between them. The principle has been asserted and applied by this court in several cases.

If the case had stood upon the first instruction of the court below, and to which we have already adverted, there would be no difficulty in affirming the judgment. But the second instruction was erroneous.

The court charged, that if the jury believed from the evidence that fraudulent design existed, on the part of Boyd and Garesche, to conceal the fact of the former's defalcation from the sureties until they had executed the bond, and that such design was communicated to the Secretary of the Treasury, and his answer received before the execution, in that case the bond would be fraudulent and void, and the sureties not liable.

Now, in the first place, there is no evidence in the case laying a foundation for the charge of fraud in the execution of the bond, in the view taken by the court as matter of fact, and therefore the instruction was improperly given. And, in the second place, if there had been, inasmuch as the condition of the bond is prospective, any fraud in respect to past transactions not within the condition, which is the only fraud pretended, could not, upon any principles, have the effect of rendering the instrument null and void in its prospective operation. We may add, also, that, so far as the agency of Garesche was material in making out the allegation of fraud for the purpose of defeating the action, the proof was altogether incompetent. His acts and declarations for the purpose were admitted without previous evidence of his appointment as agent; and also secondary proof of the contents of a pretended letter of appointment, without first accounting for the nonproduction of the original.

*Before a party can be made respon- [*51 sible for the acts and declarations of another, there must be legal evidence of his authority to act in the matter.

The counsel for the defendants ask the court to revise the judgment of the court below, rendered upon the demurrer to the rejoinders of the defendants to the plaintiffs' amended replication, overruling the demurrer, insisting that the rejoinder was good, and that judgment