
    Fenemore, Plaintiff in Error, versus The United States.
    WRIT of Error to the Circuit Court for the Diftrict of JNew-Jerfey. On the return of the Record, it appeared, that a- declaration in cafe had been filed in this action, containing three Counts ; the firft- and fecond of which, were fpe-cial Counts for a fraud and deceit, and the third was a general-Count, for money had and received by the Defendant to the ufe of the Plaintiff. The firjl Count charged the Defendant vi ith an exprefs affumpfitjthatin confideration that the Commiifioner for fettling Continental accounts, would iffue a certificate for 4273 dollars 49 ninetieths, he promifed his account againft the United States was juft for that fum, and exhibited certain vouchers to fupport it; that the account ought to be allowed, and that the vouchers were true and lawful: It averred, that confiding in the faid promifes, the United States by their faid Commiifioner, did iffue the faid certificate : And it aligned as a breach of the faid promifes, that the Defendant did not regard the fame, but craftily deceived-the United States in this, that the faid certificate ought not to have been iffued and delivered, that the account was not, nor was any part of it, for a juft debt, but was deceitful, and that the account and-vouchers were not true and lawful; whereby the United States had been greatly deceived.—The fecond Count ftated, that whereas the United States had before that time iffued and delivered to the Defendant the faid certificate, and had accepted and received from him as lawful vouchers for the iffujng and delivery thereof, the..account aforefaid, together with certain paper waitings in the declaration fet forrh, in cohfideration thereof he undertook and faithfully promifed that the faid account was a juft and true account, and that the fum. mentioned in it was lawfully due from the United States and ought to be fo certified, and that the faid certain paper writings then and there exhibited as further vouchers for - ifliiing 'the faid certificate, were regular and lawful vouchers : Neverthelefs, the Defendant did not regard his faid laft mentioned promifes, inafmuch as the faid account was not true, nor was any part thereof due, nor were the faid paper writings lawful vouchers, by means whereof the United States were by him deceived and greatly injured. The third count having ftated an ajffumffit in the tifual form, for 8000 dollars received fo the Plaintiff’s ufe, Concluded that the Defendant not regarding his feveral promir fes, for making payment thereof, had not- paid the faid fum of money, but-refufed and ftill refufes to pay the fame to the damage of the United States 8000 dollars. The Defendant pleaded non ajfumpfit, whereupon iffue was joined; and on the trial of the eaufe, the jury found a fpecial verdidt of the following tenor :—“ The jury find that the commiffioner named in the firft and fecond counts, was the lawful officer of the United States, for tranfadling the bufinefs therein mentioned; and that certain regulations were made by Congrefs; 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 Auguji 1784, fraudulently exhibited an account, claiming a balance of £. 1602 117 3-4; equal 104.273 49 go dol--lars, as due from the United States to him, which account fo fraudulently exhibited, and the vouchers therefor, the jury fet foith at large. That then and there the Defendant received,. through fraud and impofition, from the United States, the faid balance, fo as aforefaid falfely pretended to be due to him, in a certificate, which the jury fet forth in its'proper words and' figures. That the Defendant gave a receipt for the lame, in the words and figures fet forth by the jury. That according to law, the Defendant, on the 12th oí May, 1791, fubfcribed and, funded the faid certificate in the funds of the United States, and beccame a holder of the ftock it produced, amounting with the intereft, to 4893 8-90'dollars; and chat he gave to the United States a receipt for funded debt compriilng the faid certificate, which was thereupon delivered up and cancelled. But whether the faidr fubfcription,-'thé fubfequent- funding of the faid 4273 49-90dollars, with the intereft of 619 59-90 dollars, and the ftock acquired in virtue thereof as aforefaid, ought ta be allowed' as payment of the amount "of the faid certificate by the faid United States to the faid Defendant, the faid jurors know not;-and thereupon they pray the advice of the court here in the pfemi-fes: And if it ought to be allowed, then they fay he. was paid the full amount, to wit—4893. §-90 dollars. And the jurors further find, that priorato the year 179):, the United States had paid part of the intereft due on, the faid certificate, amounting to 1025 58-90 dollars. That the Defendant on the 2d of Ai{-gx/? i'78q., undertook and promifed to the United States, that the faid account was juft and true; that the fum of 4273 49-90 dollars was juftly-due to him from the United States, and ought to be fo certified ; and that the voutjfiers prt Juced by him in fupport of the faid account were regular and lawful Vouchers for iffuing and delivering the faid certificate to him. That the faid account was not juft, nor was the fum fpecified to be due therein, or any part thereof, juftly due, but the faid account was fraudulent, and the vouchers produced by him in fupport .thereof were not regular and lawful vouchers for iffuing and delivering to him the faid certificate. And whether on the whole matter by the jurors fo as aforefaid found, the Plaintiff ought to recover againft the Defendant, they are ignorant, and pray advice of the court. And, if, upon the whole matter, &c. it ihali appear to the court, that the Defendant did affume in manner and form as the United States complain, then they fay he did affume upon himfelf, &c. and they affefs the damages by reafon of the non-performance of his pro mi fes and affumptions aforefaid, 3,939 70-100 dollar's, befides cofts and charges; and' for cofts and charges 10 cents: But if it appear to the court that he did not aflame, &c. then they fay he did’ not affume, &c. And if upon the whole matter aforefaid, by the jurors found in the manner aforefaid, it ihali .appear to the court that the Defendant did affume as to' the fum of 1025 58- 90 dollars fo as aforefaid paid by the United States, in part of the intereft.To due on the faid certificate, funded as aforefaid, &c. then-they find he did affume, &c. and affefs the damages of the United States by reafon of the non-performance of the promifes. within mentioned, befides cofts-arid charges. at 1023 64-IOO dollars, and for cofts and charges 10 cents: But if upon the whole„mat- • ter, &c» it ihali appear to the court that he did not affume, in conftru&ion of law,' in manner and-form as the United States complain, then they fay he did not affume as to the faid 1025 58-90 dollars, &c.” Upon this verdidt the C-iRcuiT cqurt rendered the following judgment, on the.2d of Jpril. iyg$ : “ That the Uttited State.s do recover againft the faid Thomas Fenemare, their damages aforefaid, by the jurors aforefaid, in form .aforefaid, affeffed at 4,965 34-100 dollars ; and, alfo, 169 43-100 dollars, for their cofts and charges, by the court 
      here to the United States, with their affent, of increafe adjudg* ed; which faid damages in the whole amount to 5,134 77-100 dollars: And the faid Thomas in mercy, &c.”
    The caufe was argued at the Iaft term, upon an iffue joined, after an ailignment of the general errors, and the plea of In nullo eft erratum, by Ingerfoll and E. Tilghman, for the Plaintiff in error, and by Lee (the Attorney General) for the United States. It was then alledged in diminution, however, that a rule had been made, by confent, in the court below, which was not tranfmitted with the record, allowing fpecial counts to he added to the declaration, and agreeing “ that no objeftion fhould be made to them, byreaforiof their being of fuch a nature, as not to be joined with the firft or any other counts in confequence of which the two fpecial counts above ftated had been added. A certiorari was, therefore, awarded, at the inftanceof the Attorney General, upon the return to which, at the prefent term, the rule was duly certified.
    For the Plaintiff in error,
    it was obferved, that the obj eft is to. compel Fenemore to pay the full value of a certificate, which the acftion i'tfelf confidered as fraudulently obtained, and which, confequently, is a mere nullity. For fo much cafh as he had a&ually received on account of intereft, anacftion of af-fumpfit may be regularly brought; but the remedy as to the certificate is a hill in equity to compel him to furrender it; or, perhaps, an aétion of deceit might be proper, but affumpftt will not lie. Two queftions, however, are- fiiggefted by the fpecial verdihh; ift, Whether there has been a payment of the amount by the United States to Fenemore ? and 2d, Whether be afiumed in the manner and form Rated in the declaration? In anfwcring the fi'-Ji queftion, it .is to be remarked, that in a fpecial verdict nothing is to bev intended, the promife whether exprefs, or implied, muft be exprefsly found ; and as. the fpe-cial verdiit finds no confidc-ation for charging Fcnemore with the fum of' 3,939 70-TOO dollars, the certificate of ftock, (which is ftill to be prefumed to be in his poffeffion, which is not proved to have been converted into caib, and which is, indeed, of no value on account, of the fraud'in. obtaining it) cannot be prefutned to be a payment either in faff or lav/-; and, of courfe, there is no foundation for a promife either exprefs or implied. In alifwering th? fecond queftion, it.is not denied, that an exprefs promife (-ffent-ially the fame in both of the fpe-cial counts) is laid in the declaration; and it .is. fuppofed, that an attempt-whs rna.de to prove it as laid ; but ftill the finding of the jury-does not fupport either the firft or fecond count; for, though the jury find the promife, it is not found upon the'confi-deration laid in the declaration, which muft be the governing principie. By way of fupporting the third count,' likéwife,. the jury find all the circumftancés of fubferibing to the funding fyftem ; (which do not amount to a payment) whereas they were bound to find the acftual receipt of the money, and the only finding of an n £lual receipt of money, is the intereft of 1025 dolíais on the funded flock.-
    But the fairs arifing upon the caf?, as fet forth in the Declaration, are inconfiftent; the Counts are of a nature fo different that'they cannot bsjoine'd in the fame form of action ; the Defendant could not be apprifed of what he muft prepare to try; and he ought not to be entrapped by the generality of the Count for'monev had and received. ■ The,, fpecial Counts áre in the nature of a deceit; which cannot regularly be united with cafe upon promifes. Again: the firft and fecond counts affirm the tranfadtion, confider -the certificates as the- lawful property of Fcnemore, and bring this a ilion to recover damages for the breach of his engagement: but the third Count difiaf-firms the tranfaclion, .confiders the certificate as a nullity, and brings this adtion.to recover the money paid to Fenemore under color of. the .certificate, as lb much money received by him, for the ufe of the United States. The verdiS and the judgment are affected by the fame incongruity; for, both parts of the finding and judgment cannot be true ;' the firft part fup-pofihg the tranfaciion valid, and giving damages; while fue. fecond part fuppofing it invalid,adjudges the money to be the property of the United States. Thus, the Plaintiff pvefented' an iriconfiftent caufe of action; the jury mixed the ir.confuftent ingredients together; and the Court below have unadvifedly given ⅛ whole their fanétión. ■ But, if the inconfiftency ap-gears on the record, this Court cannot undertake to decide, to . which part of the finding the jury would .have adhered, had the qtiejrion been feafonabty propofcd to them; and rnuft, therefore, rcverfe the whole proceeding. The Untied State's may, perhaps, either á.í5rm, or diííkífirm, the tranfaction; but they cannot do both ; and theyrauit make an election before they in~ ftituté their .action.
    
    .The following authorities were-citecf, in the courfe of the argument for the Plaintiff in error 3 T. Rep. 288. I T. R'ep* 22. 3 Bl. Com. 158. Doug. 39. 1 Efp. 97. Cowp. 414. Doug. 132. 4. 2 T. Rep. 289. 143. Imp. Pr. 55. 3 Wils. 354. 2 La. . Raym.%2S).,<So'Wp. 818. 2 Bl. Rep. 848. 9.
    
      For the Defendant in err.or,
    
    it was premhed, that there feem-cd to be ho hefitation iri admitting on the p'art of the oppofite Counfel, that every principle of confcioncc and equity was op- t . pofed tothe conduct of-their client; but they contended (and it muff be agreed) that a Court of error-can only decide on the record, and the principles of law which are pertinent to. it. . Confidering the cafe-then, in the ftricteft point of view, the judgment ought'to be affirmed." Though- the verdict is cer-tainiy informa!, and appears at fisft to be.imperfect; yet, every material fact is found; and any un-necc filmy reference to the . Court will be-difregarded as mere ftupluOge. The judgment-is for both the fun.s found by the verdict; and without giving both, it is'manifeft, that jufti'ce 'could not be done- to the United States. A contract may he affirmed, of diffaffirmed. The public policy .of the Government required, that this contradi ilioul.d be affirmed. The per fon who committed the fraud ought net, hewevar, to be benchtcd by it; and,having recovered from him the value of the certificate, he will^iimfelf (á fo'r-tipri'svery purchafer) be entitled in .future to receive'the principal and intéréll from the United'States. The gift, therefore, of the enquiry js, whether it fufficiently appears.on the record, that the United’SLites have fu fie red aninjury by the ■fraudulent conduct .of the Plaintiff in error ? To this en’quiry it is immaterial, whether Fenemorepaid,or received, any thing; and even if there liad been.no exprefs ajfumpfit laid in the Declaration, or found in the fpecial verdidt, the Court were empowered to decide that there was an implied ajjumpjit, upon the reference of the faits for that, purpofe, by the jury : The Jury having however, found an exprefs ajfumpfit; that fubfe-.quent reference to the Court muft be confidered as furplufage. . Trials per Pais 269. 270. 169. Hoi. 5/}/ -
    . But, it is urged, that the youhts are inccnfiftent, and'cannot be joined in the fame declaration: to which, it is aiyfwercd, that wherever there; can be the fame;plea, and the fame judz-mer,t, different counts may be joined ; 1 T. Repl 257. 2 JVilf. 321: and wherever there h.ts bten an exprefs Warranty (which extends to- aft faults known and unknown to the feller j af-fumpfit is the. proper form; of action, • Boúgd19. There may, however, be different forms of airier. for the fame injury, ¿j, Co. 02■ -in 3 B!. C.m. 1 T¡.. it ⅛ ttated, that if any one fells .one commodity. for another, an aCtion on the cafe lies, again ft him foe damages, upon che contradi which the law always implies» that -every tianfafilon'is fair' and honeft. The fame Commehcstor ybfarves, that an action cf deceit alio lies in the cades'of warranty, before mentioned, and other perianal- injuries committed contrary to goad faith and henefty.: But an . a&qji. on the cafe for damages, in nature .of a writ of deceit, is more üfljruíy brought upon thefe occasions. Ibid '. 166. Mcrfg.. ' ¿¾⅝. 342 to 359. •.r p .
    p . On the 7⅛ of Jugcf .1)87, :the Judges delivered.their opi-' ni'ons to ti:-- following rffe-df :
    
      
       There feems tobe a variance between the funis, but no notice was falrtn of'.it in the argument. • •
    
    
      
      
         It became a queftion, -whether the return to a certiorart (which was made in this inflance, by the clerk of the Circuit Court under his hand and the feal of the Court) was within the rule eftablilhed at the iaft term (ant.f. 356.) relative to the return of writs of error ?
      Chase, fujiicc. It appears to me, that the cafes are embraced by the fame principle ; and, therefore, that the return of -the certiorari ought ta be allowed.
      Iredell, JuJlicci I cannot think, that a regulation refpefiing -writs of error, extends, of-courfe, to writs of certiorari. ' They are procefs wliofe. nature and operation, are in fome refpefts widely different. The prefent-cafe, therefore, feems to require a new rule.
      ■Paterson, JuJU.t. I will'not decide, whether, generally fpeaking, Writs of error will include.writs of certioraii * but as to the prefent object, they are clearly within the principle of the fame rule. •
      CusurNC, pfijVct. It.is enough for the prefent purpofc, that the principle of the rule applies as ltrongly to the return of a certiorai!, as to the return of a writ of error.
      Elswok-ih, pfujUcr. 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, utilcfs all ■ the proceedings" in the caufe accompany it, the return to the prefent certioraii can only be conlidered as compleatinp, the duty impofed by the original rule, in purfuance of a fiippiemeatary tirdei from this court.
    
    
      
      
         Cusuinc, .JjJhced May not the* money be conlidered as part of the .damages ailcifpd under the ípcciaJ .counts, ¿.sd fo avoid the objection <»£ a difahirmai.co ?
      
        TifgnmaVm The Br.uino of the jury negatives that idea. They, leave it to the court to decide for whofe ufe tiie'intercfl money was received,' 'and che court adjudge that it tvas received for the ufe of the United1 States* •
    
   Chwse, Jufiice.

Th? judgment' of the Circuit Court ought to be'affirmed, Here is the cafe, cf -a plain fraud. A- man fees up a claim, exhibits cc-louiable vouchers to fupport it, deceives theptiblic officer, obtains a certificate ■ that Ids claim is juft, and, finally, comforts.that certificate into transferable ftock. The 'rsnfiRion is rank from-Rye' beginning to the end;' and the jury have properly found not only the fraud-, but rhe valtle of the certificare obtained by it. The United'States, by adopting the preferí t mode of proceeding, have precluded themfelves frc-ra e-Vi-r disputing hereafter, the validity of the certificate;' and they vdi never, perhaps, be able to. indemnify themfelves, againft-the ¡ubfequent payments of in, ter eft, unk-fs Fenemore-reñíales icV/eñt, and. acceffible. to lega! pfocefs. But, furel'v, it ought never to have been a fubjeit cf argument in a court of juitioc, whether, on' ftating a 'n.anifeft fraud -piaitiftd upon . the public credit and traafury, the United States is entitled to recover an equivalent for the pecuniary injury, from the avowed deiinouent.

Iredeoi, JuJlice.

I am clearly of the fame opinion. Up- • on ftridt technical ruks, I had, at firft, feme doubts, whether the inconfiftency of tfiS- counts in the declaration would’ not lie fatal: bfit on the appearance of the rule entered into by con fen t, for the- very purpefe' of obviating objections on that ground, my mind was perfectly fatisfied. The only queftk>»iv therefore, that remains to be decided, Sums upon the right of-the United States, to affirm the original tranfaction; arid,-' .if they have that right, it follows,, inevitably, that they-ought to reco- ' ver from the Defendant an equivalent for the value of the certificate, which was furreptitioufly obtained. ' I have no difficulty in faying, that the right exifts; and that, the public in-tereft, involve ! in the credit of a public paper medium, required the exurcif;* of the right in a cafe of this kind. The circulation of the certificate ihould be unimpaired; but the Defendant ought, at leaft, to be made refponfible in his pune for the f-aud. The defence ⅛, inde.ed, an extraordinary or.e: it is an ateiv.pt to make the . very aR: of fraud, an inftru.v.ent, or ihield, of protc£fcion.„-But, 1 truíf, no man will ever be ableto-clefend tiii'.-felfin an American court of jufiice upon. the ground of his own turpitude As, therefore, every exception to form has been obviated by corifent, and as the fpecial. verdiit finds every material fait to juftify the judgment of the court below,. I think that judgment ought to be affirmed.

Cushing, Jufiice.

The caufe'is fufceptible of little doubt. The United States'Wá a right to affirm the original tranfadiion,

■ and to proceed, as they have done, for the recovery of the-value of the certificate and the intereib

’ Ri.swoit.Ti-r,' Chief Jufiike.

Giving a reafonable effeét to the rule^-which the parties themfelve have entt red into, all ob-jeéfion, as to the form and inconfiftencies of the declaration, is obviated. Then, it is to be cbnfidered, that the United States had an op ion, either to affirm, or difaffinn,- the original coni raff; arid by the. prefent a£tion they have chofen to affirm it. The fpecial verdift fairly authorised the court below to give judgment for the value of the: certificate on the firft and. Second counts, and for the amount of the money received as interefl: on the third count. With refpeft, however, to the rDhtofdifaffirmance, 1 wilh to be' underiftood, _as limiting it to the continuance of the certificate in the hands of the original party for, if the certificate had pafled into, the hands of a bona fide purchafer, even a court of equity-would, 1 think,'refufe to invalidate it; and, I am fure, public policy would foibid the attempt. ' '

Patep-son, Jifiice.

.As I-joined in giving the judgment of the Circuit Court, 'it gives me pieafure to.be relieved from the neceffity of delivering any opinion on the prefent occafion. But, though I have no doubt on the cafe now to be decided, it appears to me to be another, and a great, queftiou, how far a bill in equity would reach all the points involved in the original tranfaclion.

Judgment Affirmed.

Brown  