
    Alonzo J. Pope v. The United States.
    
      On the Proofs.
    
    
      A collector of-internal revenue becomes a defaulter. -His sureties, being called upon by the Treasury, make good Ms defalcation. Subsequently, on the settlement- of Ms accoimts, it is found that he is entitled to a credit not before allowed. TheMrst Comptroller notifieshis sureties that the amount- of this item has become available to partially reimburse them. It is accordingly divided among and paid to them in the proportion in which each contributed to make good the defalcation. He now contends that he, and not his sureties, toas entitled to this payment.
    
    Where the sureties upon an official "bond more tlian make good to the government the amount of the officer’s defalcation, the overpayment is in the nature of a mutual mistake of fact, of which he cannot take advantage. If the government refund it to the sureties, no action will lie by the principal to recover it as a balance dne to him.
    
      The Reporters statement of tbe case:
    The following are the facts as found by the court:
    I. That the claimant, on the 7th day of March, A. D. 1867, was commissioned by the President of the United States, collector of internal revenue for the fourth collection district in the State of Iowa.
    II. That on the 21st day of March, A. D. 1867, the claimant executed his bond to the United States in the penalty of one hundred thousand dollars, conditioned for the faithful performance of the duties of the office of collector of internal revenue for the said collection district, and upon this bond James H. Sanders, Elijah McOlenahan, George D. Woodin, Abner G. Brown, Jonathan T. Clark, and Sanford Hamed became sureties.
    III. That on the 22d day of March, A. D. 1867, the claimant executed a certain other official bond to the United States in the penalty of ten thousand dollars, conditioned for the faithful performance by the claimant of the duties of disbursing agent for the United States for the said collection district,and upon this bond Lycurgus McCoy, John A. Donnell, and Emanuel Loffer became sureties.
    
      IV. That On the 13th day of July, 1870, the claimant, having been designated as an agent for the sale of internal-revenue stamps for the United States for the said collection district, executed his bond to the United States in the penalty of six thousand dollars, conditioned for the faithful accounting by him to the United States of all moneys received by him from the sale of internal-revenue stamps, and for the return of all stamps remaining unsold, and upon this bond James H. Sanders, Wallace B. Merriam, and Henry W. Selby became sureties.
    V. That the following correspondence passed between the Commissioner of Internal Revenue, G. D. Woodin, and the First Comptroller of the Treasury:
    “Treasury Department,
    “Oppice op Internal Revenue,
    “ Washington, September 11, 1873.
    “ Sir : I reply to your letter of the 2nd instant, that the sum of $2,324.38 referred to is the amount that is due from the late collector, A. J. Pope, 4th district of Iowa, in his account as ‘ collector of internal revenue.’
    “ His account as ‘ disbursing agent’ is settled.
    “ In his account as stamp agent’ there is a balance due the United States of $4,546.67, stamps unaccounted for. If this latter amount is paid without suit, he will be credited with 5 % commissions thereon as sales, which would leave a net balance in that account of $2,419.34.
    “ Suit upon his bond in these accounts will not be commenced if the department is satisfied that the amount will be paid without unnecessary delay.
    “The evidence necessary to his indictment as a ‘defaulter’ wall be forwarded to the United States district attorney (Jas. T. Lane, Davenport, Iowa), if required.
    “Very respectfully,
    “J. W. DOUGLASS,
    “ Commissioner.
    
    “ Geo. D. Woodin, Esq.,
    ■ “ (One of the sureties of A. J. Pope, late coll’r 4th Iowa),
    “ Sigourney, lowaP
    
    “Treasury Department,
    “Oppice op Internal Revenue,
    “ Washington, Jan. 3d, 1874.
    “ Sir : In a letter from this office dated, Sept. 11th, 1S73, in answer to your letter of Sept. 2d, 1873, relative to the deficiency in the accounts of late Collector A. J. Pope, 4th district Iowa, you were informed that suit upon his official bond would not be commenced if the amount due the U. S. was paid without delay.
    
      “ Nearly four months have elapsed since that'date, during which nothing has been received, and this office has no information that any steps have been taken towards a settlement of the account.
    “ If the balance due the U. S. as stated in the letter of Sept, the 11th, above referred to, is accounted for without delay, the necessity and expense of suit can be avoided; but unless this is done the account will be placed in the hands of the district attorney for suit as soon as the transcripts can be prepared.
    “ This office would, however, much prefer to have the account settled without litigation, if possible.
    “ Very respectfully,
    “ J. W. DOUGLASS,
    “ Commissioner.'
    
    “Geo. D. Woodin, Esq.,
    “ (One of the sureties of A. J. Pope, late coll’r 4th dist.),
    “ Sigourney, Iowa.”
    
    “ TREASURY DEPARTMENT,
    “Oepioe oe Internal Revenue,
    “ Washington, January 26, 1874.
    “ Sir : I reply to your letters of the 12th & 13th insts., that the balance due the U. S. from late Collector A. J. Pope, 4th dist. Iowa, 'is $2,324.38, as stated in letter from this office to you dated Sept. 22nd, 1873.
    “ The letter to him of Feb’y 13th, 1873, referred to, in which the net balance is said to be $1,784.54, was corrected by a subsequent letter to him, dated March 8, 1873, in which it was explained that the balance due the U. S. in his disbursing account,’ of $539.84, as shown in 5th Auditor’s report Ho. 5981, had been overlooked in the letter of Feb’y 13,1873.
    “ The balance found due to him in his ‘ compensation account’ No. C204, of $849.93, and also the balance due him in report No. 5800, of $40.91, were considered in the adjustment of his disbursing account No. 7600, -which shows a-balance due him of $722.71. Deducting from this thebalance due from him in his accounts for the fiscal year of 1871, as shown in report No. 5981, referred to, $539.84, leavés a net balance due him of $182.87 in that account, to be credited to his ‘ revenue account,’ as stated in letter from this office dated Sept. 22d, 1873.
    “ This amount should be deposited in some authorized government depository to the credit of the Treasurer of the TJ. S. in favor of A. J. Pope, late coll. 4th dist. Iowa, on account of ‘ collections of int. rev.’, and the duplicate certificate of deposit forwarded to this office.
    “ The official bond of late Collector Pope is on file in the office of the First Comptroller of the Treasury, Hon. R. W. Tayler, and your request for a copy of the same and a copy of the final adjustment of Coll’r Pope’s revenue account has been referred to Mm, and will be answered from that office.
    “Yery respectfully,
    “ J. W. DOUGLASS,
    
      “ Commissioner.
    
    
      “ G. D. Woodin, Esq.,
    “ (One of the sureties of A. J. Pope, late coll.), “ Sigourney, Iowa.”
    
    [George D. Woodin, ErsMne W. MeJimkin.]
    “Oeeice oe Woodin & McJunkin,
    “Attoeneys at Law, Sigourney, Iowa, Jan’y 28,1874.
    “Com. Int. Eev.:
    “ On the 12th instant I informed you the sureties on the bond of A. J. Pope, late collector 4th Iowa district, were ready to pay up, and asking where & to whom to make payment. No reply. We don’t know where the devil to send the money, which is ready. As to amount, please answer mine of 12th inst.
    “Yours, truly,
    “G. D. WOODIN.”
    “ Teeasuey Depaetment,
    “Fiest Oompteollee’s Oeeice,
    “ January 31si, 1874.
    “ Geoege D. Woodin, Esq.,
    
      uSigourney, Iowa:
    
    
      “ Sie : Your letter to the Commissioner of Internal Eevenue of the 12th inst. has been received and referred to this office. In answer, I have to state that the balance due from late Collector A. J. Pope, 4th district of Iowa, on his revenue or collection account, by the last Treasury settlement, report No. 8128, was two thousand five hundred and seven and -af0- dollars ($2,507.25). Since then a payment has been made by transfer from his disbursing account, per report No. 8420, of one hundred eighty-two and dollars ($182.87), leaving the sum of two thousand three hundred twenty-four and ^ ($2,324.38) as the balance now due from him on that account.
    “ You ask ‘ how and where to pay ’ this balance. I answer, by depositing the amount with the most convenient U. S. assistant treasurer or depositary to the credit of the U. S. Treasury, as a payment by yourself (and other sureties, as the case may be) on account internal-revenue collections due from'said Pope to the United States, taking certificates of deposit in triplicate, the‘original’ to be sentto the Secretary of the Treasury, the ‘ duplicate to the Commissioner of Internal Revenue, and tbe ‘triplicate to be retained by tbe party making tbe deposit. A certified copy of tbe official bond of late Collector Pope, on wbicb your name appears as one of tbe sureties, will be furnished you, as reguested, so soon as tbe balance claimed as due tbe U. S. from Pope on bis revenue account, viz, $2,324.38, shall have been paid.
    “ Very respectfully,
    (Signed) “E. W. TAYLEB,
    “ Comptroller.”
    “Office of Woodin & McJunkin,
    “Attorneys at Law,
    “ Sigourney, Iowa, Feb. 3, 1874.
    “ Coat. Int. Bev. :
    “ Dr. Sr. : I hope tbe sureties of A. J. Pope and Uncle Samuel are now even. Please find duplicate receipt.
    “Yours, truly,
    “C. D. WOODIN.77
    “ Treasury Department,
    “Office of Internal Bevenue,
    “ Washington, February 12,1874.
    “ Sir : You were notified by tbe First Comptroller, by letter dated tbe 10th inst.', that $130.33 bad been erroneously credited to tbe account of late Collector A. J. Pope, 4th dist. Iowa, in tbe settlement of bis disbursing account, so that tbe amount to be credited to bis revenue account as due him in his ‘ disbursing account would be reduced that amount. It is now ascertained that in the lists of uncollected taxes transferred by Mr. Pope to bis successor, Mr. Bichie, there were several errors in footing, which entitle Mr. Pope to a credit of $75.00 in his ‘rev-' enue account.
    “ Deducting this amount of $75.00 from the sum of $130.33 mentioned in letter of tbe Comptroller, leaves a net amount of $55.33 to be deposited by you in addition to tbe sum of $2,324.38 deposited by certificate of deposit No. 2429, National Bank of Davenport, received bore on the 10th inst., to close tbe account of late Collector Pope.
    “Very respectfully,
    “J. W. DOUGLASS,
    “ Commissioner.
    
    “ Geo. D. Woodin, Esq.,
    “ Sigourney, Iowa.”
    
    
      “Treasury Department,
    ■ “First Comptroller’s Oepioe, Washington, D. C., September 28th, 1874.
    “ George D. Woodin, Abner G. Brown,
    Elijah MoGlenahan, and Jonathan T. Clark,
    “ Sureties on the bond of A. J. Pope,
    
    
      Late Collector of Internal Revenue, 4th List. Iowa:
    
    “ Gentlemen : In the settlement of the account of A. J. Pope, late collector of internal revenue, 4th district of Iowa, with N. B. Judd, late U. S. depositary at Chicago, Illinois, the sum of $809.04 has been found to be due to Mr. Pope. Of this amount the sum of $78.52 is due from Mr. Pope to the United States, and the balance of $730.52 is available for the partial reimbursement of the sureties on the bonds of said Pope as collector of internal revenue and internal-revenue stamp agent for payments made by them on his behalf.
    “The sureties on his bond as collector are entitled to $471.93, to be divided as follows: George D. Woodin, $125.85; Abner G. Brown, $125.85; Elijah McClenahan, $94.38, and Jonathan T. Clark, $125.85; and the sureties on his bond as stamp agent are entitled to the balance, $258.59.
    “ Treasury drafts for the amounts as above specified will be ' sent to the care of George D. Woodin, esq., Sigourney, Iowa, in due course of business.
    “Very respectfully,
    “WM. HEMPHILL JONES,
    “ Acting Comptroller.”
    VI. That on February 2, 1874, the sum of $2,324.38 was deposited by four of the sureties above named, viz, G. D. Woodin, A. G. Brown, J. T. Dover (should be J. T. Clark), and E. McClenahan, in the Davenport National Bank, Davenport, Iowa, to the credit of the Treasurer of the United States, on account of internal revenue, and this sum was covered into the Treasury.
    VII. That on February 21,1874, the sum of $1,273.61 was deposited by two of the sureties on the claimant’s official bond as stamp agent, viz, H. W. Selby and S. A. Merriam, executors of W. B. Merriam, deceased, in the Davenport National Bank, Davenport, Iowa, to the credit of the Treasurer, on account of sales of internal-revenue stamps, and this sum was covered into the Treasury.
    VIH. That drafts aggregating $730.52 were paid to the persons and in the proportion named in the Comptroller’s order and indorsement on the warrant.
    
      
      Mr. John J. Weed for tbe claimant.
    
      Mr. Joseph K. McCammon (with whom was tbe Assistant Attorney'General) for defendants.
   Hunt, J.,

delivered tbe opinion of tbe court:

Tbe claimant was appointed and commissioned as collector of internal revenue for tlie fourth collection district in tbe State of Iowa, and was authorized to act as stamp agent and disbursing agent in that district. He gave bond according to law, with satisfactory surety, for tbe faithful discharge of bis trust. He became a defaulter in 1873. Failing to make good bis defalcation, bis sureties were called upon to do so. On the 11th of September, tbe Commissioner of Internal Revenue wrote a letter to them, threatening them with suit if tbe amount due the government were not paid without delay, and adding that tbe evidence necessary to tbe indictment of tbe claimant as a defaulter would be forwarded to tbe United States district attorney, if necessary. After a brief delay and further threats from tbe Commissioner, tbe sureties paid to tbe government tbe deficiency in tbe claimant’s account, adjusted at $2,324.38.

On tbe 28th September, 1874, tbe Acting First Comptroller of tbe Treasury notified tbe sureties that in tbe settlement of tbe claimant’s account with tbe United States depositary in Chicago, a balance bad been found to be due to tbe claimant by tbe depositary in that city$ and that tbe sum of $730.50 bad thus become available for tbe partial reimbursement of tbe sureties for tbe payment made by them on bis behalf. That, sum was accordingly refunded to them, and was divided among them into sums proportioned to tbe payment each bad made into tbe Treasury. Tbe claimant now brings suit to recover this amount of $730.50 from tbe government. He contends that be is entitled, instead of bis sureties, to this amount, and that tbe payment to bis sureties ought not to prevent his recovering it.

We are unable to concur in this view. Tbe settlement of tbe claimant’s debt to tbe government was made by tbe sureties, and not by tbe claimant. Tbe overpayment was made by tbe sureties, and not by tbe claimant. Tbe mistake was made between tbe government and tbe sureties, and not with tbe claimant. It was their money and not bis that, was paid in error; and tbe right of action for its recovery back belonged to them, and not to him.

If tbe claimant bas any right to this money, it subsists in his favor against bis sureties, and not against tbe government. But tbe record presents a state of facts fatal to any demand of bis against them. They responded to tbe call of tbe government, and came to bis rescue when be stood on tbe brink of arrest and prosecution, and they have not yet been repaid tbe full amount of money they advanced to save him.

Under tbe shadow of circumstances as dark as these, tbe claimant invokes tbe aid of this court to condemn tbe government to pay for a second time, and to him, a sum that bad been exacted of bis bondsmen through a mistake, and which be well knows bas been returned to them — a mistake occurring in tbe settlement of bis account as a public defaulter. ■ Tbe court cannot lend itself to bis assistance. Px turpi causa non oritur actio.

Tbe petition is dismissed.

Deake, Oh. J., was absent when this case was beard and took no part in tbe decision.  