
    THE UNITED STATES v. WARD H. LAMON.
    At Law. —
    No. 12,549.
    I. In an action for money had and received to the plaintiff’s use, the plaintiff cannot recover the money unless he proves that it is against conscience for the defendant to keep it. The burden of showing this is upon the plaintiff. In the absence of proof upon this point, the presumption is that the money was lawfully paid to the defendant, and that he has the right to retain it.
    II. A party sued by the United States cannot set up a claim by way of set-off, unless such claim has been made out with the proper account and vouchers, and presented for settlement at the Treasury Department as required by section 951 of the Revised Statutes ; and where the claim is sustained by no evidence except the affidavit of the claimant, it was properly rejected by the accounting officers of the government, and is equally inadmissible as evidence on the trial of the case in court.
    STATEMENT OE THE CASE.
    This was an action to recover the amount of two checks, dated on the 23d of December, 1861, each for the sum of $1,000, drawn on the Assistant Treasurer of the United States at New York, by Lieutenant J. D. Devin, acting quartermaster, and which checks were afterwards paid to the defendant. The object of the suit is to recover the amount thus paid, together with interest from the date of such payment. The declaration contains the common money counts, and the defendant pleaded the general issue.
    At the trial of the cause the plaintiff introduced the checks as set forth in the opinion, and rested without any further evidence.
    The defendant was permitted to prove that, having received authority from the Secretary of War to raise and equip a regiment of Virginians, and to muster them into the service of the United States, he furnished his own money in raising, equipping, and maintaining the said troops; that the sum thus expended was $23,000, which has never been repaid to him in whole or in part; that, having expended all his own means, the defendant applied to said Devin for funds to pay for meat for the support of the recruits, and received the two checks in suit, and applied the sam e exclusively to the payment of such bills, and did not use any part thereof for his own use and benefit. He also introduced a certified copy of an affidavit made by himself, and which he had presented to the Secretary of the Treasury, stating the account in his favor against the United States, for the said sum of $23,000 expended by defendant in maintaining the troops aforesaid, the same being unaccompanied by any itemized account or vouchers in support thereof, and which claim had been rejected by the auditing officers of the department, on the ground that they had no jurisdiction of the counter-claim of the defendant, that it was not supported by vouchers, and was debarred by section 3489 of the Revised Statutes, p. 695. To this evidence there was an exception by the plaintiff.
    After the testimony was concluded the plaintiff asked the court to instruct the jury that the defendant was not entitled to set off against the plaintiff’s claim any amount expended by him prior to the date of the checks, because an itemized account supported by vouchers was not presented for allowance or disallowance, as required by law, nor was the claim presented toithin the time required by law.
    
    
      Which instruction the'court refused to give, but did instruct the jury, in substance, that the defendant was not by law required to present his said account to the accounting officers of the United States; that the laws of the United States in relation to presenting set-offs to accounting officers did not apply to this transaction. And if the jury believed from the evidence that the checks were delivered for the pulpóse of paying for said supplies and subsistence of persons who were thus mustered into the military service of the United States, and were paid out by the defendant for that purpose, then the plaintiff was not entitled to recover; to which the plaintiff’ excepted. The jury found for the defendant and against the plaintiff.
    The third section of the act of 1797, which is section 951 of the Revised Statutes, and the true construction of which is involved, reads as follows:
    “In suits brought by the United States against individuals, no claim for a credit shall be admitted upon trial except such as appears to have been pi’esented to the accounting officers of the Treasury for their examination, and to have been by them disallowed in whole or part, unless,” &c.
    The other material facts appear in the opinion.
    
      H. H. Wells, U. S. District Attorney, for plaintiff’.
    It will be observed that the restriction of the statute [see statement] applies to all suits brought by the United States ' and to all individuals; it is not confined, as other sections of 'the act are, to suits against persons sustaining an official relation to the United States, but is a plain and unambiguous reservation to the United States -of an important right to have all claims excluded from judicial inquiry which have not first been submitted for examination, allowance, or rejection to the accounting officers of the Treasury. (United States v. Giles et al., 9 Cranch, 236; Same v. Wilkins, 6 Wheat, 148; Same v. Ripley, 7 Pet., 25; Same v. Fillebrown., 7 Pet., 28 ; Same v. McDaniel, 1 Pet., 1; Same v. Robinson, 9 Pet., 367; 
      10 Pet., 625; 12 Pet., 1; 7 Wall., 491; 13 Wall, 63; 1 Otto, 559.)
    All the cases upon this subject rely largely upon the settled doctrine that the United States cannot be sued except under such conditions and limitations as the government may itself prescribe. It is entirely competent for the United States to repudiate all the debts alleged to have been contracted, by Lamon in its behalf, and it does, by the statute which we are now considering, refuse to recognize or to allow to be offered in set-off any claim of any kind which has not first been presented to such accounting officers. Such presentation is the condition precedent upon the performance of which the claim 'could only be offered and considered.
    It is very probable that the defendant has a meritorious claim, but he has no right, nor is there any consideration of equity that ought to allow him to override .the statutory requirement. ' There.is in fact no limit to the depredations upon the Treasury of the United States which would be possible if claimants can submit their demands, well or ill founded, to the judgment of jurors without first subjecting them to examination by the proper accounting officers. And whatever this defendant may do in this particular, all others may do under the same circumstances.
    Another ground upon which the reversal of the judgment in this case is asked, is that the claim was barred by the statute of limitations of March 3, 1873, and never could be proved or allowed after the 30th of June, 1874, by the accounting officers of the Treasury, nor before any court or jury.
    Section 3489 of the Revised Statutes, p. 696, provides that no claim against the United States “ for collecting, drilling, or organizing volunteers for the war of the rebellion shall be audited or paid unless presented before the 30th day of June, 1874.”
    This claim was of that character, and falls within the language and spirit of the act, and it was not presented before the day mentioned.
    No detailed statement or itemized account of the expenditures was ever presented or rendered. The names of persons who furnished the goods are not found in the claim. Nor is there any specification of kind, amount, price, or character of the articles supplied. All we have is the “ amount of money expended in June, July, August, September, October, November, and December, 1861, in raising, clothing, subsisting, and equipping.”
    
      Nathaniel Wilson, for defendant.
    The action being to recover $2,000 money had and received to the use of the plaintiffs, the defendant’s testimony that he had paid out all that he had received for the purpose for which he had received it, did not constitute a “claim for a credit,” within the meaning of the statute, but related wholly to the plaintiff’s right of action.
    “In commercial law, credit is understood as opposed to debit; credit is what is due to a merchant, debit is what is due by him.”
    A “claim for credit” is a claim “for what is alleged to be due.”
    “ The object of the act,” says the Supreme Court of the United States, in the case of The United States v. Wilkins, 6 Wall., 135, “seems to be to liquidate and adjust all accounts between the parties, and to require a judgment for such sum only as the defendant in equity and justice should be proved to owe to the United States.”
    The defendant was not a disbursing officer. He did not receive any money from the United States. He is not charged with any money on the books of the Treasury.
    The defendant on his part had no account against the United States for the $2,000 which he had paid out after receiving it from the disbursing officer. He never made any claim for that amount, nor to be credited that amount. His only “ claim ” was that he had paid out the money he received for the purpose for which he received' it. If his testimony be true, and it is not impeached, upon what grounds can the United States recover $2,000 from the defendant ? It is said that the defendant, having failed to comply with the requirements of the law hereinbefore quoted, the government is entitled to a judgment, on proof that money of the government came into the hands of the defendant.
    Suppose that the money in question had been paid directly by the disbursing officer’s to the butchers to whom it was due, instead of being paid to the butchers through the defendant: would the government be entitled to a judgment against the butchers unless they could show that they had made a claim for. a credit to the accounting officers of the Treasury, and that the claim had by them been disallowed ? To affirm such a pretension on the part of the government is to say that every person who receives the money of the United States, whether in payment for goods sold or for services rendered, is liable to be sued for what he receives, and can make no defense except after invoking the action of the accounting officers of the government upon matters which, as it seems to me, are wholly outside the limits of their duty as prescribed by law.
    The liability of the defendant is not in any respect different or more extensive than that which attaches.to every person who receives the moneys of the government from a disbursing officer. He was, it is true, an officer- of the United States, and he had nothing to do with the expenditure of public moneys. Colonel Devin, by whom the check was signed, was a disbursing officer, and liable- to- the United States for all public moneys received by him. He was required by law to give bond for the faithful performance of his duties. For the money which is claimed of the defendant he is responsible. The payment of the money by Colonel Devin to the defendant was a transaction between individuals. If the disbursing officer failed to take vouchers for his payments which would entitle him to a credit for the amount paid on the settlement of his account, it may be that in such settlement he has actually been allowed credit for the amount claimed.
    The record shows that the defendant, having been informed that his meritorious defense could not otherwise be considei’ecl by the court on the trial of this suit against him, presented to the accounting officers the statement of his account.
    Although no claim was made for a credit within the meaning of the statute, it was supposed by the defendant that he was complying with a technical requirement of the law.
    It was objected that the act of the defendant was not in compliance with the law, because (1) no vouchers accompanied the account, and (2) the claim was barred by the statute referred to in the auditor’s endorsement.
    So far as this suit is concerned aud the amount sought to be recovered, these objections do not debar the defendant from availing himself of the defense which he sets up. (United States v. Laub, 12 P., 1.)
   Mr. Justice Wylie

delivered the opinion of the court:

This.was an action of assumpsit in the common counts to recover $2,000 with interest. At the trial plaintiff' gave in .evidence two drafts, as follows:

No. 75. Williamsport, Md., December 28, 1861.
Assistant Treasurer oe the U. S., New York.
Pay to Colonel W. II. Lamon, or order, one thousand dollars ($1,000). J. D. Levin,
Lt. 9sfh Inf’y, A. A. Q. M.
(Paid February 22, 1862.)
No. 76. Williamsport, Md., December 23,1861:
Assistant Treasurer oe the U. S., New York.
Pay to Colonel W. H. Lamon, or order, one thousand dollars ($1,000). J. D. Levin,
Lt. 9 th Inf’y, A. A. Q. M.
(Paid February 22, 1862.)
Plaintiff there rested. This was plaintiff’s whole evidence.

The evidence showed that Lamon had been paid $2,000 on -account of the United States, and this was all it showed. It .did not show that the United States had any right to recover the money. In an action for money had and received to the plaintiff’s use, the plaintiff cannot recover the money unless he proves that it is against conscience for the defendant to keep it. (1 Selwyn’s N. P., 99.) Tbe burden of showing this is upon the plaintiff. In the absence of proof upon that point, the presumption is that the money was lawfully paid to the defendant, and that he has the right to retain it.

In the present instance the plaintiffs own evidence wasffiot sufficient to entitle it to a verdict against the defendant. Defendant was not content, however, to occupy this secure position, but chose to set up the defense that not only had ail this money been expended in the service of the government, but a very large sum of his own in addition, which had never been repaid, but which, after so great a lapse of time, he did not seek to have repaid. Believing, howevei’, that he would be denied the right to make any defense against the government unless such defense were first made out and presented for settlement at the Treasury, as is required by law in cases of set-off, he made out and presented to that department a claim amounting to $23,000, less the amount of the two drafts in question. His claim was sustained by no evidence except his own affidavit, all his vouchers having been lost or destroyed, as he stated, in the course of military operations during the war in the valley of Virginia. Of course the claim was rejected by the accounting officers of the Treasury, the auditor saying: “ If the said claim was supported by full and complete vouchers, still it would be debarred by section 3489 of the Revised Statutes of the United States, p. 695.”

Undoubtedly the action of the accounting officers was correct. Without vouchers for any item of the claim, except the claimant’s own affidavit, it could not lawfully be allowed.

At the trial below, however, defendant again offered the same papers in evidence. The plaintiff objected; the objection was overruled, the papers admitted in evidence, and a bill of exceptions taken by the plaintiff.

It appears to us that these papers were equally inadmissible for evidence in the court as at the Treasury.

The subsequent testimony given by the defendant was competent for the purpose of showing the circumstances and the - consideration attending the giving of the drafts in question, but for no purpose beyond that. Indeed, the defendant himself disclaimed an idea of asking for a verdict from the jury for the balance in his favor,, as set up in the claim presented to the Treasury Department. The testimony, if believed, was conclusive on this point, and showed that Larnon’s conduct had been not only perfectly honest, but highly patriotic in the transaction ; and we have no doubt whatever as to the perfect verity of his statement in regard to that matter. His whole defense, however, was unnecessary, for the plaintiff' had made out no case against him; and so he is entitled to have an affirmance of this judgment, notwithstanding the error in admitting in evidence the papers which had been presented to the Treasury Department.  