
    HOWGATE v. THE UNITED STATES.
    Sealed Instruments ; Evidence; Presumptions; Agency; Action on Bonds; Delivery; Practice; Principal and Surety; Treasury Accounts as Evidence; Duress ; Signal Service.
    1. Proof of the signature on a sealed instrument carries with it the presumption that the seal likéwise is genuine, but this presumption, while it makes out a prima facie case in a suit on the instrument, may be rebutted by the defendant.
    2. The fact that a bond required of a disbursing officer of the government when first filed was improperly executed, in that there were no seals affixed, and that it was returned to the principal, who afterwards filed it properly executed, raises no presumption against its genuineness, in a suit brought by the government against the surety. The presumption is that when the surety signed the bond he unintentionally omitted to affix his' seal, and that when it was returned to his principal in order to have the seals affixed, and it was again delivered to the Department with the seals affixed, the act of affixing the seal was the act of the surety. The burden is on the surety to show that he did not affix the seal.
    3. In such a transaction the relation between the government and the disbursing officer is not that of principal and agent, and, therefore, if the sealing was done by him it was not an alteration of the instrument by an agent of the government.
    4. In a suit on a bond after the plaintiffs proved its execution and closed their case, a motion was made by the defendants to strike out the bond from evidence for variance between the bond sued on and that offered in evidence, the alleged variance being that the bond was sued on as bearing date on April 2, 1878 (which the proof showed was the date of its delivery), while when offered in evidence it purported in the body of it to have been executed on “ the - day of March, 1878,” and to bear the endorsement of its acceptance on April 2, 1878. On appeal it was held, affirming the order of the court below denying the motion, (1) that the true date of the instrument was that of its delivery and not the conventional date specified in the body thereof, and (2) it was unnecessary to decide how far it was necessary to set forth the conventional date in the description of the instrument sued on and as proper for its identification, as the objection of the defendants was made too late.
    5. Whether the Treasury Department can restate the accounts of a disbursing officer after they have once been stated and settled, quaere.
    
    6. Where a judgment is recovered against a defaulting officer of the government for a part of his defalcation and partially satisfied by execution, the judgment is evidence, although not conclusive, against his sureties, of the defalcation in a subsequent suit on his bond.
    7. And in such a case it is not reversible error to admit in evidence transcripts of the defaulter’s accounts from the Treasury.
    8. Where an officer of the army is assigned to' a position of trust and his retention in such office is conditioned upon his giving bond for the faithful performance of his duties, a bond given by him under such circumstances is not void as having been given under duress.
    9. And although the bond in such a case recites that such office was created by law, it is immaterial whether there is a statute creating such an office and defining the duties of its occupant, if the bond was a voluntary one, intended to subserve a lawful purpose and not objectionable upon any ground of public policy; and therefore it is a valid obligation.
    10. In 1878 the office of “ property and disbursing agent ” of the Signal Service was an actual office, created by the Secretary of War, and sanctioned by Congress.
    No. 232.
    Submitted March 7, 1894.
    Decided May 7, 1894.
    Hearing on an appeal by the defendants on a. bill of exceptions from a judgment of the Supreme Court of the District of Columbia, in an action on a bond.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This is an appeal from a judgment at common law rendered upon a bond given to the United States.
    Henry W. Howgate was an officer in the army of the United States, assigned to duty in the branch known as the Signal Service. He had been on duty in that service for some time as property and disbursing officer, when, about March 4, 1878, in consequence of a large requisition drawn by him, he was notified by the Secretary of War that he should give bond, such as the commissaries were required to give, for the faithful .performance of his duties as such disbursing officer. He accordingly gave such a bond, or an instrument purporting to be such a bond, in the penal sum of $12,000, with Lebbeus-H. Rogers, of New York city, and William B. Moses, of the city of Washington, as sureties, conditioned for the faithful discharge of the duties of his office, and that he would “ faithfully expend all public money and honestly account for the same and for all public property which shall or may come into his hands on account of Signal Service, U. S. Army, without fraud or delay.” The bond was “ dated the — day of March, in the year of our Lord one thousand eight hundred and seventy-eight”; but the day of the month was not filled in, and never has been filled. The bond, however, was presented to the War Department or reached that department in due course of mail on the 27th day of March, A. D. 1878. But it was found upon examination that there were no seals attached to the signatures of the parties who had executed it; and on March 29, 1878, the bond was returned to Howgate for the purpose of having the proper seals affixed. Under date of April 1, 1878, How-gate returned the document to the Secretary of War with the seals affixed; and thereupon, on April 2, 1878, the bond was approved and accepted.
    From April 2, 1878, to December 18, 1880, when Howgate resigned from the United States army, he received, as property and disbursing officer of the Signal Service of the United States army, the very large sum of $1,182,742.32, and proved to be a defaulter to the amount of $133,255.22, for which he failed to account, and which he misappropriated to his own use, by means of forged and fraudulent vouchers. He managed to impose these false vouchers on the accounting officers of the Treasury, and therewith to have his accounts settled and balanced, a payment of $104 made to him on April 27, 1881, closing his accounts, which were then certified to have been settled.
    
      Soon afterwards, however, gross frauds were discovered in the accounts, consisting mainly of forged vouchers. Thereupon, on August 24, 1881, suit was brought against him by the United States in the Supreme Court of the District of Columbia, to recover the sum of $101,257.08, which was part of the money covered by the forged vouchers. A writ of attachment was issued in that suit against his property. But Howgate appeared in the suit by attorney and contested the proceedings. The result was a personal judgment against him for the sum of $101,257.08, the amount claimed, and a judgment of condemnation of the attached property, which, after several years of delay, finally secured to the United States about $28,038.82, which was credited upon the amount of the defalcation, and still left $105,216.38 due to the United States. It does not appear from the record before us why this suit was not instituted for the whole amount of the defalcation; but that is of no consequence in the present action.
    After the discovery of Howgate’s frauds, the accounting officers of the Treasury Department, on March 25, 1884, restated his accounts, rejected the forged and fraudulent vouchers, and found the balance due from him, as already stated, to be the sum of $133,255.22.
    On September 29, 1884, the present suit was instituted upon Howgate’s bond. Service was had only on the defendant William B. Moses. The other two defendants were returned not to be found; one of them (Rogers) being a nonresident, and Howgate, the principal debtor, who was at the same time under criminal charges, having absconded.;
    The original declaration contained only one count, setting forth the bond as of the 2d day of April, A. D. 1878, and alleging the breach of it, without specification of the condition. It was afterwards amended by the addition of a second count, in which the office and duties of Howgate, and the circumstances of the execution and acceptance of the bond, and' the amount of, the defalcation were specifically set forth. The defendant Moses filed fifteen pleas ini defense of the suit, six of them amounting to the general issue or its equivalent; three alleging alteration of the instrument without the knowledge or consent of the defendant after it had been executed by him by the addition of seals after the names of the parties executing the bond; two to the effect that the bond had been extorted from Howgate by duress and coercion; two to the effect that there was no law requiring such a bond; one that the bond was without consideration; and one to the effect that it was improper to join the two counts in one declaration.
    Issue seems to have been joined upon all the pleas; for the record fails to disclose any other action upon them.
    Pending the suit and before trial, the defendant Moses died, and his personal representatives were made parties.
    Finally the' cause came on for trial on March 28, 1893, and resulted in a verdict for the plaintiffs in the sum of $12,-000, the amount of the bond, with interest from September 29, 1884, the date of the institution of the suit, upon which, on the admission by the defendants of sufficient assets in their hands, there was judgment for the plaintiffs on April i, 1893. From this judgment, and from the order of the court overruling their motion for a new trial, the defendants on the same day appealed to the General Term of the court; and in due time thereafter procured to have their bill of exceptions duly signed and sealed.
    It should be added that at the trial, after the conclusion of the testimony for the plaintiff in rebuttal, and before the introduction of testimony for defendants in surrebuttal, the second count of the declaration was withdrawn by the plaintiffs over the objection of the defendants, who thereupon moved to strike out all the testimony relative to this second count. But upon their failure to point out any testimony that was specially applicable to that count, their motion was overruled.
    
      Mr. W. A. Cook and Mr. W. L. Cole for the appellants.
    1. The sealing of a bond is as necessary to its due and formal execution as signing, and there .being no evidence tending to prove the sealing of the bond, the defendants’ objection to its admission in evidence should have been sustained. Follett v. Rose, 3 McLean, 332 / US. v. Linn, 15 Pet., 290; Edelin v. Sanders, 8 Md., 129, 130; State v. Humbird, 44 Md., 327; Chilton v. People, 66 Ill., 501. The variance in date between the bond declared on and the one produced in evidence is fatal. Cooke v. Graham, 3 Cr., 235-
    2. The court below erred both in admitting the Treasury transcripts and instructing the jury as to their effect as evidence, for the following reasons.: First. Because the certificates attached thereto were not in proper form. Second. Because the contents of the transcripts are not such as are made evidence by the statute; and, Third. Because the accounting officers of the Treasury had no power at the date of alleged settlement set forth in said transcripts to make the same, they having previously stated and settled an account with him which appears upon the books of the Treasury. R. S. U. S., 886, for construction of which see U. S. v. Hoyt, 10 How., 134; U. S. v. Pinson, 102 U. S., 548, and cases therein referred to. See also U. S. v. Brennerman, Gilpin, 48 ; Bruce v. U. S., 17 How., 437; U. S. v. Jones, 8 Pet., 375 ; U. S. v. Edwards, 1 McLean, 467.
    For the form of certificate approved by the Supreme Court of the United States, see U. S. v. Bell, in U. S., 477. See also U. S. v. Jones, 8 Pet., 375 ; Gratiote v. U. S., 15 Pet., 27°, 336; U. S. v. Eckford, 1 How., 250; Bruce v. U. S., 17 How., 439; U. S. v. Stone, 106 U. S., 525.
    3. Accounting officers of the Treasury in auditing and settling the accounts of an officer act in a quasi judicial capacity, and one acting thereon exhausts their power, and after-wards they have no power or jurisdiction to restate or alter them in any way to the prejudice of the officer, except to correct clerical errors of computation and the like. Op. Att. Gen., vol. 1, 625-629; Id.,vol. 2, 624-629. They are stated or settled accounts and can only be changed by consent, or surcharged and falsified by proper pleadings and proofs between the parties thereto in a court of competent jurisdiction. U. S. v. Bank, 15 Pet., 400; U. S. v. Jones, 8 Pet., 375 ; U. S. v. Collier, 3 Blatch., 325 ; see especially 352-3. Ex parte Randolph, 2 Brock., 447 ; see especially 473-5 and authorities there cited. U. S. v. Kuhn, 4 Cr., C. C., 401 ; Soule v. U. S., 100, U. S., 8.
    4. Howgate objected to giving the bond, and only yielded his objection and gave it under a threat of military discipline by his superior officer, the Secretary of War; but the court refused to admit the evidence of that fact. This was error. There was an issue of fact made on this point in the pleadings. This is not an immaterial issue, but a substantial one, and if sustained by proof renders the alleged bond void. The evidence offered tended to sustain that issue and should have been admitted. U. S. v. Tingey, 5 Pet., 115 ; Bradley v. US., 10 Pet., 343 ; U. S. v. Linn, 15 Pet., 290; U. S. v. Humason, 6 Sawyer, 199; Howes v. Marchant, I Curt., C. C., 140; Churchill v. Perkins, 5 Mass., 541 ; U. S. v. Hodson, 10 Wall., 409; Soule v. U. S., 100 U. S., 8.
    5. The judgment against Howgate is not competent evidence against defendants. Brandt on Suretyship, Sec. 524.
    See the authorities referred to by the author in a note to this section and also the note of the editor of the American Decisions, vol. 83, p. 380 et seq., where he reviews the cases and approves the rule as stated by Mr. Brandt. The case of Drummond v. Prestman, 12 Wheat, 515, is not an authority for the admissibility of the judgment in this case. There the principal made a settlement in the ordinary course of business admitting an amount due and subsequently confessed judgment for the admitted amount, and it was said to be evidence because an admission of the principal, which is always evidence against the surety where made in the usual course of business so as to become a part of the res gestae, 1 Greenl. Ev., § 187.
    6. The alleged bond is void for uncertainty. The third plea of the defendants is to the effect that there is no law creating any such office as that of “ property and disbursing officer, Signal Service, U. S. A.,” mentioned in said bond, or defining the duties of any such office or officer, and that said bond is void. There is a special replication to the third plea in which it is admitted that no such office, officer, or duties thereof had been created or defined by law prior to the execution of such bond, but alleged that the duties and responsibility had been created and prescribed by order of the Secretary of War, and that such duties were in contemplation of the parties at the time of the execution of the bond. As there is and was, confessedly, no law creating any such office or officer or prescribing any duties appertaining thereto, under the pleadings in this case, it became necessary for the plaintiffs, in order to render the bond of any legal force, to prove by the orders or regulations mentioned in the replication what the duties of the officer were. No such evidence was given. Where there is no law or lawful regulation of a department creating an office and prescribing the duties thereof, a bond to perform the duties of such supposed office and to account for and pay over money coming to the hands of the officer is void for uncertainty, there being no definite subject-matter to which the obligation of the bond can attach. U. S. v. Jackson, 104 U. S., 41; U. S. v. Maurice, 2 Brock., 103 ; Jackson v. Simonton, 4 Cr., C. C., 259 ; Com. v. Jackson, 1 Leigh, 485 ; City of La Fayette v. James, 92 Ind., 240; Bank v. Dickerson, 41 N. J. L., 448 ; Pybus v. Gibbs, 6 E. & B., 902 ; Oswald v. Mayor of Berwick, 5 H. L. Cas., 856.
    The sureties upon an official bond can be held liable for the faithful performance of those duties only which adhered or were germane to the office at the time their undertaking was entered into, and not for other and different duties added to the office after the execution of the bond. Mechem on Public Officers, § 305 and § 306; Gaussen v. U. S., 97 U. S., S90; U S. v. Kirkpatrick, 9 Wheat., 720; U. S. -v. Powell, 14 Wall., 493 ; Miller v. Stewart, 9 Wheat., 703 ; Converse v. U. S., 21 How., 463 ; White v .East Saginaw, 43 Mich., 567 ; Walsh v. Colquitt, 64 Ga., 740.
    
      
      Mr. Andrew B. Duvall, Special Assistant United States Attorney, for the United States.
    1. There was no error in the refusal to instruct as prayed by appellants that the bond sued upon by reason of its alleged alteration was not the bond of Moses. Murfree on Official Bonds, Sec. 761;Butler v. U. S., 21 Wall.,* 272;Dair v. U S., 16 Wall., 1; Ins. Co. v. Bender, 124 N. Y., 49 ; Dox v. P. M. Geni., 1 Pet., 318. The objection of variance should have been made when the bond was offered in evidence. Roberts v. Gi'aham, 6 Wall., 578. Allegations in a pleading of time, quantity, value, etc., need not be proved with precision. U. S. v. Le Baron, 4 Wall., 642; and no variance ought ever to be regarded as material where the allegation and proof substantially correspond or where the variance was not of a character which could have misled the defendant at the trial. . Nash v. Towne, 5 Wall., 689; Phillips v. Smoot, 1 Mackey, 478.
    2. The Treasury transcripts were properly admitted in evidence. See R. S. D. C., Sec. 886. All of the objections urged against these transcripts appear to have been answered by the Supreme Court of the United States, in Bruce v. U. S., 17 How., 437. See also U. S. v. Hunt, 105 U. S., 183; U. S. v. Gaussen, 19 Wall., 212, 213. The “facts and circumstances ” to justify the reopening and restatement of the accounts offered by the appellants were abundantly shown in the testimony in rebuttal, which exhibited the proof of the false, fraudulent, and forged vouchers (contained and enumerated in “ the statement of differences ”) upon which the alleged 'settlements had been procured by Howgate. The grossest fraud and imposition was practiced by him in settling those accounts.
    Fraud, says Judge Cooley (Torts, 474), “ is deception practiced in order to induce another to part with property or to surrender some legal right, and which accomplishes the end designed.” Fraud will vitiate the most solemn transactions, and any asserted title founded on it is utterly void. The Armistead, 15 Pet., 518, 594. A conveyance on its face legal may be shown, even in an action of ejectment, to be void for fraud. Fraud is cognizable in a court of law as well as in a court of equity. Swayze v. Burke, 12 Pet, n. Treasury accounts are not exceptions to the universal rule, that if their has been any mistake, omission, fraud, accident, or undue advantage by which the account stated is vitiated and the balance incorrectly stated, it will not be conclusive between the parties, but it may be opened and re-examined, i Amer. & Eng. Ency. Law, 125. See.also Perkins v. Hart, 11 Wheat, 237; U S. v. Eckford, 1 How., 250; Soule v. U. S., 100 U. S., 8; U. S. v. Johnson, 124 U. S., 253, 254.
    3. The bond was not extorted and given under duress. The bond itself, duly executed, is prima facie evidence that it vwas voluntarily entered into. U. S. v. Mora, 97 U. S., 413. A voluntary bond taken by the United States for a lawful purpose is valid, though not prescribed by any positive'law. It is founded upon a sufficient consideration and intended to subserve a lawful purpose. U. S. v. Bradley, 10 Pet., 343; U S. v. Hodson, 10 Wall., 395; Tyler v. Hand, 7 How., 573; Jessup v. U. S., 106 U. S., 147. It does not constitute duress or extortion' that the bond was executed because the Department had given such directions. Soule v. U. S., 100 U. S., 12. There is no pretense that Howgate was compelled to execute this bond and act as “ property and disbursing officer”; he could continue as such officer if he gave the bond; he desired to continue to act under that assignment rather than perform other military duty; he, accordingly, chose to give the bond “ in compliance with the wishes of the Department.” Hamilton v. Dillin, 21 Wall., 91.
    Again, even if the offer constituted in law, duress, that is a personal defense, which can only be set up by the person' subjected thereto. Duress to the principal will not avoid the obligation of a surety .unless the surety at the time of executing the obligation is ignorant of the circumstances which render it voidable by the principal. 6 Amer. and Eng. Ency. Law, 96.
    4. The judgment against Howgate was competent evidence against his surety. It is well settled law, that a judgment against the principal is, at least prima facie evidence against the surety; as the surety máy claim the benefit of a judgment in favor of his principal, so he may reasonably be concluded by a judgment against hirq, unless he can show facts which exonerate him. Murfree on Bonds, 598 et seq.; McLaughlin v. Bank, 7 How., 229; Drummond v. Prest-man, 12 Wheat., 515; Bergen v. Williams, 4 McLean, 125.
    There are many authorities holding that the judgment is conclusive against the surety.
    It is claimed by appellants that the act of settlement and notice to Moses that Howgate was not indebted to the Government and leaving him under this impression until it was too late to protect himself, is such active misconduct as ought to discharge a surety. But neither delay, default, nor the equitable doctrine of estoppel can be set up against the Government. It is only estopped by deed. U S. v. Van Zandt, 11 Wheat., 184; Dox v. P. M. Geni., 1 Pet., 138; Hart v. U. S., 95 U. S., 318; U. S. v. Sherman, 98 U. S., 565 ; Steele v. U. S., 113 U. S., 134; Simmons v. Ogle, 105 U. S., 273; Bank v. U. S., 148 U. S., 579.
    5. The bond is not void for uncertainty. The uncertainty which it is claimed avoids this bond, is alleged to consist in the fact that there is no law creating any such office as “property and disbursing officer, Signal Service, U. S. A.,”, or defining the duties of any such office or officer. Nevertheless, his duties and responsibility had been prescribed by authority of the Chief Signal Officer, with the sanction and approval of the Secretary of War. He had charge of all matters pertaining to money and property under the care, control, and administration of the Signal Service of the United States army, and these duties were in contemplation of the parties. The very name and title which designated the officer itself defined his functions and duties. See R. S. U. S., Secs. 161, 1094, H95- See Murfree on Bonds, Sec. 202, and cases cited; Strong v. U. S., 6 Wall., 788 ; Soule v. U. S., 100 U. S., 8; Gaussen v. U. S., 97 U. S., 593; Jessup v. U. S., 106 U. S., 147; U. S. v. Bradley, 10 Pet., 365 ; U S. v. Cutter, 2 Curtis, 617.
   Mr. Justice Morris

delivered the opinion of the Court:

The record before us in this case, it may be noticed, is open to a considerable extent to the same criticism which we were compelled to make recently in the case of R. R. Co. v. Fitzgerald, 2 App. D. C., 501, on the mode in which the bill of exceptions has been made up. It is "to be hoped that the suggestions there made will receive due consideration from counsel in the preparation of all future causes for the action of this court. The difficulty in the present cause is enhanced by the failure of the'otherwise very able and lucid brief of counsel for the appellants to comply with the rules of this court that require a clear statement of the case and a specific assignment of errors. The statement of the case by counsel in that brief is quite meagre and there is no assignment of errors beyond what we can get by inference from the summary of the pleas that is given and from the argument based thereon. It is to be hoped that counsel will comply more strictly with the rules in this regard in the future.

Assuming that the assignments of error intended for the consideration of this court are contained in the summary of the defendant’s pleas, we find that they are reduced to five, as follows:

1. That the bond in question was not the bond of Moses, and that it was error to hold him or his estate upon it.

2. That the bond, after its delivery by Moses, had been altered without his knowledge and consent; and for such alteration the court should have held it void as to him.

3. That the bond was illegally extorted from Howgate by his superior officers, and therefore should have been held void.

4. That there was no such office created by law as was specified in the bond, and no duties prescribed by any competent authority for the alleged officer; and that, therefore, the bond should have been held void for uncertainty.

5. That there was no breach by Howgate of the condition of the bond.

And in connection with these assignments of error, it is argued that the admission of certain accounts of Howgate, as stated by the accounting officers of the Treasury, and of the judgment against Howgate as evidence in this case, was erroneous; and also that it was erroneous to refuse certain testimony tending to show duress upon Howgate to give the bond. And it is also argued that there is a variance between the bond sued on and that offered in evidence.

1. The first substantial question in this cause is whether the alleged alteration of the bond by the addition thereto of seals after it passed out of the possession of Moses, vitiated the instrument. It is conceded that the signature of Moses to the bond was the genuine signature of the original defendant, William B. Moses; and it is shown conclusively that, when the bond was presented to the War Department for its approval, on March 27, 1878, some, if not all, of the seals were wanting. The document was returned to How-gate by the department for the purpose of having the seals affixed; and it is probably no more than a fair inference that there were no seals affixed at the time, although the witness to the execution of the paper by Moses testified that to the best of his belief the seals were affixed at that time to the signatures of Howgate and Moses. It might have been that only the seal to the signature of Rogers was wanting. But whatever may have been the fact in this regard, it is of course incumbent on the plaintiffs to make at least prima facie proof of the execution of the document that forms the basis of the suit. The plaintiffs have made that proof in this case by showing that when the bond in question was finally delivered to the War Department and was accepted and approved by it, and by such acceptance and approval became operative on April 2, 1878, the signature and seal were affixed thereto purporting to be the signature and seal of the defendant William B. Moses, and that the signature was undoubtedly the genuine signature of the defendant. Proof of ■ the signature carries with it the presumption that the seal likewise was genuine. Hall v. Bainbridge, 17 L. J., Q. B., 317; Phillips on Evidence, Vol. 1, Ch. X, Sec. 2; Edelin v. Sanders, 8 Md., 118. But this presumption, while it makes a prima facie case for the plaintiffs, may be rebutted by the defendant; and it is sought to be rebutted in this instance by the showing of the plaintiffs themselves that, at the antecedent date, when the bond was first presented to the department for acceptance it was incomplete and was refused and returned by the department on that account. But plainly this proves nothing. The fact that a paper was imperfectly executed in the first instance, and that it was returned to the principal party concerned in it for proper execution, raises no presumption whatever against its genuineness, when after-wards it is produced with all the indications of genuine exe* cution. On the contrary, the presumption is that the parties did what they ought to have done. The presumption is that Moses did not intend to perpetrate a fraud upon the United States by palming off upon them as an instrument under seal a document which was not in fact under seal, although he had solemnly certified over his admitted signature that it was under seal. The presumption is that, when he signed' the instrument, he intended to affix his seal to it, and that the omission was one of inadvertence. And the presumption further is that, when the bond was returned to.his principal in order to have the seals affixed, and it was again delivered to the department with the seals affixed, the act of affixing the seal was the act of Moses.

The argument on behalf of the defense is that the return of the bond by the War Department to Howgate was a delivery of it to its own agent; and that, if the sealing was done by Howgate, it was an alteration of the instrument by an agent of the United States. But this is a totally erroneous conception of the relations of the parties. Howgate was an employee, it is true, of the United States; but in this instance he was dealing with them as man with man. He and they were alike principals in this transaction, and it would be a perversion of fact to assume that they were dealing with each other as principal and agent. Whatever agency is to be presumed in the matter would rather be, if any there were at all, of an agency from Moses to Howgate to make the document all that it was plainly intended by both of them that it should be, if we are to assume that they intended to act honestly in the matter.

It is argued, however, that the evidence fails to show that, after the first delivery of the paper to the War Department, it was ever again seen by Moses, or ever sealed by him. But herein is the weakness of the defense. It was incumbent on the defendants to show that it had not in fact been sealed by Moses, or by his authority. The plaintiffs, as we have seen, had made prima facie proof of their case, had proved the signature of Moses, and had thereby raised the presumption of the genuineness of the seal and of the complete execution and delivery of the bond by him; and it was for the defendants to rebut the presumption and to disprove the sealing by Moses. This by their own showing they have entirely failed to do.

The authorities cited on behalf of the defendants utterly fail to sustain their contention. The case of Edelin v. Sanders, 8 Md., 118, so far as it is at all in point, is antagonistic to that contention; and in the cases of Follett v. Rose, 3 McLean, 332 ; U. S. v. Linn, 15 Pet., 290; State v. Humbird, 54 Md., 327, and Chilton v. People, 66 Ill., 501, the instruments sued upon as sealed instruments, when actually produced at the trial, were shown not to have any seals at all affixed to them.

The assignment of error based upon the alleged alteration of the bond in suit after its delivery by Moses we regard as without foundation so far as is shown by anything that appears in the record.

2. The alleged variance between the bond sued on and that offered in evidence, it is claimed, should have excluded the latter from consideration; and it is therefore argued that its admission was error.

When the bond in question was offered in evidence by the plaintiffs in their testimony in chief, the only objection made to it was that of the absence of seals as heretofore stated. There was no reference whatever to the matter of variance. This point was made only after the plaintiffs had closed their case; and it was then made by a motion to strike 'out the bond on the ground of the alleged variance. The variance consisted in the fact that the bond was sued on as bearing date on April 2, 1878, the day of its receipt and acceptance by the War Department, and the bond offered in evidence purported in the body of it to have been executed on “ the — day of March, 1878,” and to bear the' indorsement of its acceptance on the 2d of April, 1878. The date of the delivery of the bond was undoubtedly that of April 2, 1878; and the true date of an instrument is that of its delivery, and not the conventional date specified in the body of the deed. It is only by the act of delivery that a deed becomes effective; and it necessarily follows that a deed may always be declared on as of its true date, regardless of the conventional date of execution. U S. v. Le Baron, 19 How., 73. But how far it is necessary to set forth the conventional date in the description of the instrument sued on and as proper for its identification, it is unnecessary here to determine. It is sufficient for the present case that the objection of the defendants came too late.

As said by the Supreme Court of the United States, in the case of Roberts v. Graham, 6 Wall., 578, “ the plaintiff was entitled to be apprised of the objection if it were intended to be relied upon, at an earlier period in the progress of the trial. The court would doubtless have permitted an amendment, if deemed necessary, upon such terms as the interests of justice might seem to require. The defendant’s right to make the objection was waived and concluded by the delay. He could not make it at the time and in the manner it was presented.”

In the case of Nash v. Towne, 5 Wall., 689, it was said that “no variance ought ever to be regarded as material where •the allegation and proof substantially correspond.” And in the case of the U. S. v. Le Baron, 4 Wall., 642, it was held, upon a declaration and proof very similar to the declaration and proof in the present case, that there was no variance.

The defendants were deprived of no substantial right by the alleged variance, nor were they in any manner taken by surprise; and it is not apparent how a reversal of the judgment upon this ground, if we could assume" that there was error in the ruling, could be of any service whatever to them.

3. The'principal part of the argument for the defendants ,. is addressed to the question of the relevancy and competency of certain transcripts from the Treasury Department which are claimed to have been erroneously admitted in evidence; and in connection therewith to the record of the judgment rendered in the Supreme Court of the District of Columbia against Howgate for the amount of his defalcation. We deem it unnecessary to follow the appellants in their inquiry whether these transcripts were in proper shape to be by themselves independently admitted in evidence, as proof against the defendants, or whether there was any power in the accounting officers of the Treasury Department to restate the accounts of Howgate after they had once been stated and settled, although we find it difficult to see why a settlement with the Treasury should not be vitiated by fraud like any other settlement. The gross frauds and forgeries perpetrated by. Howgate in this instance ought not to receive the sanction of finality with the Treasury Department when they would not receive such sanction in the case of a settlement with private individuals. But that question, in our opinion, is not necessarily involved in this case.

Here we have a judgment against Howgate rendered by a court of competent jurisdiction for the amount of his defalcation or the larger part of it. The transcripts from the Treasury may be regarded simply as serving to identify the items that entered into the judgment as being the items of defalcation. The claim of the United States against How-gate became merged in that judgment; and it was unneces--sary to recur to the transcripts from the Treasury for any purpose, except possibly for the mere purpose of the identification of the items. The introduction of the transcripts, therefore, did the defendants no harm;, at most, they were only surplusage; and it is well settled that, even if such testimony was improperly admitted, the error, if error there was, constitutes no reason for a reversal of the judgment. Mining Co. v. Taylor, 100 U. S., 37; Chicago v. Greer, 9 Wall., 726; Cavazos v. Trevino, 6 Wall., 778.

The judgment rendered against Howgate was, when identified as stated, evidence of his defalcation. It was proper and competent evidence against his sureties, although not conclusive. Drummond v. Prestman, 12 Wheat., 515 ; U. S. v. Allsbury, 4 Wall., 186 ; McLaughlin v. Bank, 7 How., 229.

4. We are next to consider whether the bond in suit was extorted from Howgate by duress; and whether it should not for that reason be regarded as void. The duress which the defendants offered to prove was to the effect that if How-gate did not give such a bond as was required of him, he would not be permitted to retain the office of property and disbursing agent to which he had been appointed. Assuming that the proof offered to show this was competent, with regard to which there may be doubt, we fail to find here any such condition of things as would in law be regarded as duress. There was no threat of loss of office or emoluments. Howgate’s standing in the army was not menaced. He had received a special assignment, presumably sought by himself, to a position in which he was charged with the disbursement of large sums of the public money; and thei War Department, as in the case of other analogous offices, naturally sought to secure the faithful expenditure of that money, and made his appointment to the position, or his continuance in it, dependent upon his giving bond. This cannot be regarded as duress under any reasonable construction of law. Soule v. U. S., 100 U. S., 12.

5. Nor, in the next place, is it oí any consequence whether there was any statute creating and defining the duties of the “ property and disbursing agent ” of the Signal Service. The bond, at least, was a voluntary bond, intended to subserve a lawful purpose, and not objectionable upon any ground of public policy; and therefore it is a valid obligation. Jessup v. U. S., 106 U. S., 147 ; U. S. v. Hodson, 10 Wall., 395 ; Tyler v. Hand, 7 How., 573.

But it is not correct to say that, at the time when this bond was given, there was no statute defining the duties of the “property and disbursing agent” of the Signal Service of the United "States Army. As far back as the year 1867 the Signal Service had been organized and this very office created by the War Department with its appropriate duties; and in a clause in the Army Appropriation act of June 16, 1874 (18 Stat., 72), Congress gave its express sanction to the organization, and provided that “the Signal Service shall be maintained as now organized under the authority of the Secretary of War.”

. There is a manifest distinction between this case and those cited by the appellants in their brief. As, for instance, in the case of United States v. Jackson, 104 U. S., 41, the bond was defective, which was given by a collector of taxes, inasmuch as it did not specify the district for which he had been appointed. There is no such office as that of “ collector of taxes at large. But the office of “ property and disbursing agent ” of the Signal Service was an actual office, created by the Secretary of War and sanctioned by Congress, as we have already seen.

It is unnecessary to pursue the subject further. We fail to find any substantial error in the record that would warrant Our interference with the judgment rendered by the court below against the appellants; and that judgment is therefore affirmed.

Note. — This case was heard on appeal in the Supreme Court of the United States, eight justices sitting, and the judgment below was affirmed in January, 1895, by a divided court. A motion for a rehearing was subsequently granted, and the case continued to be heard by a full bench. — Reporter.  