ABNER L. DUNCAN'S HEIRS AND REPRESENTATIVES, PLAINTIFFS IN ERROR
v.
THE UNITED STATES.
Supreme Court of United States.
*440 Mr C.J. Ingersoll, for the plaintiffs in error.
Mr. Taney, attorney-general.
*445 Mr Justice M'LEAN delivered the opinion of the Court.
This writ of error is prosecuted to reverse a judgment of the district court, which exercises circuit court powers, in the state of Louisiana.
In the year 1829 an action was commenced by the United States against the plaintiffs in error, on a bond given by William Carson, as paymaster, and signed by A.L. Duncan and John Carson as his sureties. The bond bears date the 4th day of March 1807, and contains a condition "that, if the above bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform *446 and discharge the duties of said office of paymaster, &c. within the district of Orleans, then the obligation to be void," &c.
The breach alleged in the petition was, that William Carson, paymaster, &c., "has not well and truly, according to law, discharged and performed the duties of said office for the district of Orleans; but that, on the contrary, he did, in his life time, receive large sums of money in his capacity aforesaid, which, although frequently requested, he refused to pay into the treasury of the United States."
The defendants in their answer say, that "by and in said bond, it was stipulated and understood, when the same was signed by Abner L. Duncan, as security for said Carson, that one Thomas Duncan should also sign the same, as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was said A.L. Duncan ever bound thereby." They also aver that they are not liable for the alleged defalcation in the accounts of said Carson, because he acted as paymaster out of the limits of the district of Louisiana, and the said deficiencies, if any exist, occurred without the limits of said district.
Before the jury were sworn, the defendants offered a statement to the court, for the purpose of obtaining a special verdict on the facts, in pursuance of the provisions of the tenth section of a statute of Louisiana, passed in 1817. But the court overruled the statement, and would not suffer the same to be given to the jury, for a special finding, because it was contrary to the practice of the court to compel a jury to find a special verdict. To this decision an exception was taken.
A transcript of the accounts of Carson, duly certified by the treasury department, was then given in evidence to the jury; and the judge charged the jury, that the bond sued on was not to be governed by the laws of Louisiana, or those in force in the territory of Orleans, at the time said bond was signed by A.L. Duncan, who signed it in New Orleans, in the then said territory; but that this, and all similar bonds, must be considered as having been executed at the seat of government of the United States, and to be governed by the principles of the common law. That although the copy of the bond sued on exhibited a scrawl instead of a seal, yet they had a right to *447 presume that the original bond had been executed according to law. That the jury were bound to presume, in the absence of all proof as to the limits of the district of Orleans, that the defalcation of Carson occurred in the district of Orleans, although it was proved that he disbursed moneys, as paymaster, at fort Stoddart and at Washington, in the territory of Mississippi; and that if the defendant Carson had acted as paymaster beyond the limits of the district of Orleans, it was incumbent on the defendants to prove the fact. And the judge also charged the jury, that the possession of the bond by the treasury department was prima facie evidence of delivery to which charge exceptions were taken.
The jury rendered a verdict against the defendants, for six thousand one hundred and twenty-six dollars, with interest, &c.
This judgment the plaintiffs in error pray may be reversed, on the following grounds:
1. Because the surety, Abner L. Duncan, is not bound; as when he executed the bond, it was agreed that it should also be signed by Thomas Duncan.
2. Because William Carson was appointed paymaster for a certain district, and the judgment covers defalcations, which may have occurred out of such district.
3. The rejection by the court of the statement of facts, on which a special verdict was prayed.
4. Because the rejection of this statement precluded the defendants from proving that the bond was delivered as an escrow.
As to the first error assigned, it appears, on an inspection of the bond, it was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan, as sureties for William Carson, but that Thomas Duncan never signed it. There are no witnesses to the bond, but, on the day of its date, it was acknowledged by William Carson and Abner L. Duncan, before a notary public at New Orleans, and on the 21st day of May following, John Carson acknowledged it before a notary public at Harrisburg, in Pennsylvania.
To sustain this ground, reference is made to a decision of the supreme court of Louisiana in the case of Wells v. Dill, reported in 1 Martin, 592. In their decision, the court say, that, *448 "the defendant is sued on the ground that he signed as surety, an instrument, purporting to be a bond, signed by Charles Blanchard, for his faithful performance of the duties of curator, to the vacant estate of one Jared Risdon, deceased. In opposition to this action, the defendant relies, principally, on the want of the signature of another person to the instrument, whose name is mentioned in the body of it as co-surety. The bond is drawn in the name of Charles R. Blanchard, as principal, and the defendant and Walter Turnbull as sureties. At the bottom, the names of Blanchard and Dill are affixed; that of Turnbull is wanting. We agree with the defendant, that, under these circumstances, his signature to the obligation does not bind him. The contract is incomplete, until all the parties contemplated to join in its execution affix their names to it, and while in this state cannot be enforced against any one of them. The law presumes that the party signing did so, upon the condition that the other obligors named in the instrument should sign it: and their failure to comply with their agreement gives him a right to retract." Pothier is cited by the court to sustain this principle.
There can be no doubt, that under the civil law, the principle is correctly stated by the court. It must be observed, however, that the court say, the want of Turnbull's signature was principally relied on to invalidate the bond; so that there seems to have been no circumstances going to refute the presumption against its validity, arising from its face; and that the omission of the signature, was not the only ground of objection to it.
It is a principle of the common law, too well settled to be controverted, that where an instrument is delivered as an escrow, or where one surety has signed it on condition that it shall be signed by another before its delivery, no obligation is incurred until the condition shall happen. And if it appeared in the present case, that Abner L. Duncan signed the bond, to be delivered on condition that Thomas Duncan should execute it, there can be no doubt the plea should have been sustained in the court below. But the delivery of the bond, as well as the signatures of the parties, is a question of fact for the jury; and this court cannot determine the legal question arising on *449 such fact, unless it be stated in a bill of exceptions. The acknowledgement of the bond by Abner L. Duncan, and afterwards by John Carson, unconditionally, and its delivery to the government, would seem to rebut the inference drawn by the plaintiffs against its validity, from the simple fact of its not having been signed by Thomas Duncan. There is, therefore, nothing upon the face of the record which would go to destroy the validity of this bond.
A question was raised, and elaborately argued by the counsel for the plaintiffs, whether this bond, having been executed at New Orleans, was not governed, not only as to the manner of its execution, but also as to the extent of the obligations incurred under it, by the principles of the civil law. In the case of Cox et al. v. The United States, decided at the last term, this question was settled.
This is an official bond, and was given in pursuance of a law of the United States. By this law the conditions of the bond were fixed, and also the manner in which its obligations should be enforced. It was delivered to the treasury department at Washington, and to the treasury did the paymaster and his sureties become bound to pay any moneys in his hands. These powers, exercised by the federal government, cannot be questioned. It has the power of prescribing, under its own laws, what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases, the local law cannot affect the contract; as it is made with the government, and in contemplation of law, at the place where its principal powers are exercised.
As there was no evidence before the jury that any part of the defalcation of the paymaster occurred without the limits of the district in which, as appears by the bond, he was to act; the court below might well instruct the jury, that in the absence of such proof, they were bound to presume that the deficiency took place within the district.
The rejection of the special verdict by the court, is the ground which seems most to be relied on for a reversal of this judgment.
In 1817 the legislature of Louisiana enacted, that "in every case to be tried by a jury, if one of the parties demands that *450 the facts set forth in the petition and answer should be submitted to the said jury, to have a special verdict thereon, both parties shall proceed, before the jury are sworn, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the counsel and signed by the judge, and the jury shall be sworn to decide the question of fact or facts so alleged and denied," &c.
On the 26th of May 1824, congress passed an act entitled "an act to regulate the practice in the courts of the United States for the district of Louisiana; in which it is provided, that the mode of proceeding in civil causes in the courts of the United States, that now are, or hereafter may be established in the state of Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of said state: provided that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make, by rule, such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such exist, between such state laws and the laws of the United States."
This section was a virtual repeal, within the state of Louisiana, of all previous acts of congress which regulated the practice of the courts of the United States, and which came within its purview. It adopted the practice of the state courts of Louisiana, subject to such alterations as the district judge of the United States might deem necessary, to conform to the organization of the district court, and avoid any discrepancy with the laws of the union.
By a code of the Louisiana legislature, passed in 1829, called the "Code of Procedure," the act of 1817 was repealed. This repealing act was not before the court until the present session; and a question is made under it, whether it does not, by virtue of the act of congress of 1824, change the practice of the district court. It is insisted; for the plaintiffs, that it could not have been the intention of congress, by the act of 1824, to subject the practice of the district court in Louisiana to any changes which the legislature of that state might adopt, in reference to the practice of the state courts: and the construction *451 which has been given to the act of 1792, which regulates process in the courts of the United States, is relied on as conclusive on the point. This act, by re-enacting the act of 1789, adopted the "modes of process" for the district and circuit courts, which were in use at the time of its passage in the supreme courts of the respective states, but did not require, as this court have decided, a conformity to the changes which might be made in the process of those courts. Nor did the act apply to those states which were subsequently admitted into the union. But this defect was removed by the act of the 19th of May 1828, which placed all the courts of the United States on the same footing in this respect, except such as are held in the state of Louisiana.
It does not appear that the district court of Louisiana, by the adoption of any written rule, has altered the practice which this court, in the case of Parsons v. Armor and Oakey, and Parsons v. Bedford and others, reported in 3 Peters, considered as having been adopted by the act of 1824. But, if the questions raised in these cases occurred after the act of 1817 was repealed by the code of procedure, in 1829, the fact was not known to the court. As the act of 1824 adopted the practice of the state courts before this court could sanction a disregard of such practice, it must appear, that, by an exercise of the power of the district court, or by some other means, the practice had been altered.
It is not essential that any court in establishing or changing its practice should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding, for a series of years, and this forms the law of the court.
In the case under consideration, it appears that the Louisiana law, which regulated the practice of the district court of Louisiana, has not only been repealed; but the record shows, that in the year 1830, when the decision objected to was made, there was no such practice of the court as was adopted by the act of 1824. The court refused to suffer the statement of facts to go to the jury for a special finding, because they say, "such was contrary to the practice of the court."
On a question of practice, under the circumstances of this case, it would seem, that the decision of the district court, as *452 above made, should be conclusive. How can the practice of the court be better known or established, than by its own solemn adjudication on the subject?
In regard to the last error assigned, it is not perceived how the refusal of the special verdict precluded the defendants from proving that the bond was delivered as an escrow. Such evidence was admissible under the plea or answer of the defendants; but it does not appear that any such was offered and rejected by the court.
The judgment of the district court must be affirmed, with costs.
This cause came on to be heard on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by counsel: on consideration whereof it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.