
    R. F. Slaughter v. John Hamm.
    Public officer who receives money to pay to a public creditor, and obtains a receipt for the whole upon the payment of a part, is liable for the residue, though no deception or fraud be practiced.
    This was an action of assumpsit for money had and received, submitted to the court to decide upon the law and facts, and reserved for decision at Columbus, in Muskingum county.
    The facts in the case were as follows: The defendant, in 1820, was marshal of the Ohio district, and was charged by law with taking the census, then taken under a law of the United States. The plaintiff was appointed his assistant to take the census in the county of Fairfield. On the 1st day of August he subscribed a written paper, engaging to perform all the duties required by law, “ including an account of the manufacturing establishments and their manufactures, at the rate of one dollar and twenty-five cents for every hundred persons in said county, the marshal furnishing all the regulations, restrictions, forms, and interrogatories necessary.” The district judge allowed the marshal two dollars and fifty cents per hundred persons for taking the enumeration of Fairfield county, which amounted to three hundred and thirty-six ^dollars and sixty-six cents. This sum was paid to the marshal, and an additional sum of sixty-seven dollars and thirty-three cents for taking the account of manufactories and manufactures, amounting in the whole to four hundred and three dollars and ninety-nine cents.
    On June 5, 1821, the plaintiff settled with the defendant, and gave his receipt for three hundred and thirty-six dollars and sixty-six cents, “ being in full for taking the census of Fairfield county,” and also for “ twenty per centum upon that sum, being the allowance in full for taking an account of the manufactures in said county. The whole sum actually paid by the defendant and received by the plaintiff was two hundred and fifty-three dollars and forty-nine cents. At the time of receiving this sum and giving the receipt, the plaintiff was apprised of the amount received from the government by the defendant. The suit was brought to recover the difference between the sum paid to the plaintiff and that received by the defendant.
    Goddard, for the plaintiff:
    A perusal of the act of Congress, providing for taking the fourth census, approved March 14, 1820, is necessary to a correct understanding of the case.
    By the first section the marshals are authorized and required to “appoint one or more assistants in each county.” The oath of the marshal is that he will “ cause to be made ” an enumeration, etc. The oath of the assistant, that he “ will make ” an enumeration, etc.
    The marshal is not authorized personally to take the enumeration. His duties in relation to the census are specifically pointed out, and are to file returns with clerk, transmit the aggregate to secretary of state, etc.
    His compensation for these services is fixed by section 4 at three hundred dollars.
    By the same section the compensation of the assistants is fixed at one dollar for every one hundred persons (except in cities), “ but where, from the dispersed situation of the inhabitants in some divisions, one dollar will be insufficient for one hundred persons, the marshals, with the approbation of the judges of their respective districts, may make such further allowance to the assistants in such divisions as shall be deemed an adequate compensation : Provided, the same *does not exceed one dollar and twenty-five cents for every fifty persons by them returned,” etc.
    This clause shows conclusively that the marshal himself was to have nothing more to do with the census than those specific duties before mentioned, for which he received three hundred dollars.
    Section 10 authorizes the secretary of state to allow twenty per centum for taking an account of manufactures.
    1. Is the contract binding upon the plaintiff so as to preclude him from receiving any more?
    2. Does the receipt in full bar all inquiry into the actual amount received ?
    If, when the contract was made, the defendant intended nothing fraudulent, but fixed the sum of one dollar and twenty-five cents as what, from his knowledge of the density of the population in Fairfield county, he supposed would be a reasonable compensation, the plaintiff certainly would not be precluded from receiving the additional sum which the district judge afterward determined to be reasonable. This adjudication of the district judge was for the benefit of the assistants — not intended to swell a perquisite for the marshal. The contract was made in August, 1820; the determination of the judge was in March, 1821. Now, imputing to the defendant nothing unfair or improper, it is clear that the contract for one dollar and twenty-five cents was not to bar the plaintiff from the additional compensation certified by the judge; otherwise the marshal would have said to the judge, “This man has agreed to do the duties for one dollar and twenty-five cents. Any certificate of further pay to that county is unnecessary,” and none would have been given.
    The court are bound to impute absolute verity to the certificate of the district judge. They are bound to believe that two dollars and fifty cents per one hundred was a reasonable compensation for Fairfield county, and that nothing less would have been so. A contract for less would be a farming out of the business and a fraud on the government, its tendency being to cause that to be carelessly and negligently done, which the government intended should be faithfully done.
    
      There is considerable analogy between this case and those where the action is brought to recover the excess of ^interest taken upon an usurious bond. In the case of Bosanquet v. Dashwood, Cas. Temp. Talb. 38, it was held that the illegal interest could be recovered back, and that the principle of particeps criminis did not apply. I consider the language of the chancellor as particularly applicable here: “Morcan it be said, in every case of' oppression, that the party oppressed is particeps criminis, since it is that very hardship which he labors under, and which is imposed on him by another, that makes the -crime. The case of gamesters, to which this has been compared, is in no way parallel; for there both parties are criminal; and if two persons will sit down and endeavor to ruin one another, and one pays the money, if, after payment, he can not recover it at law, I do not see that a court of equity has anything to do but. to stand neuter; there being in that case no oppression upon one party, as there is in this. Must he keep money that he has no right to, merely because he got it into his hands?” This case is cited with approbation by Lord Mansfield, and declared to be the rule of courts of law in the case of Smith v. Bromley, 2 Doug. 696, note. He there says : “ If the defendant take advantage of the plaintiff’s condition or situation, still the plaintiff shall recover.” And again: “I am persuaded it is necessary for the better support and maintenance of the law to allow this action; for no one will venture to take if he knows he is liable to refund. Where there is no temptation to the contrary, men will always act right.”
    I will cite to the same purpose the case of Jaques v. Golightly, 2 Black. 1073, where it was held that “money paid as a premium for insuring lottery tickets may be recovered back, though the winnings (if any) can not be recovered, the contract being void by statute.”
    2. That a receipt in full does not preclude examination into the sum actually paid, I beg leave to refer the court to the following authorities:
    Barret et al. v. Rogers, 7 Mass. 297. “ A bill of lading is not conclusive evidence in all cases, as to the condition of goods shipped in packages.”
    Stratton v. Rastall et al., 2 Term, 366. “ A receipt is not conclusive evidence against the party who signs it.”
    
      *Middleditch v. Sharland, 5 Ves. 87. “ Inquiry directed into sum actually paid, though receipt in full given.”
    House v. Low, 2 Johns. 378. “ A receipt may be explained by parol.”
    McKinstry v. Pearsall, 3 Johns. 319. “ Evidence admitted to explain a written receipt.”
    Tobey v. Barber, 5 Johns. 68. “Parol evidence is admissible to explain or contradict the terms of a receipt.”
    Putnam v. Lewis, 8 Johns. 389. “ Same point.”
    Newell v. Lawrence, 12 Johns. 531. “It has been repeatedly ruled in the Supreme Court that receipts may be explained, and even contradicted, by parol evidence. The grossest abuses and frauds might be practiced if bare receipts were to be deemed conclusive, and not open-to examination.”
    No argument was presented for the defendant.
   By the Court :

• The act of Congress distinctly marks out and defines the several duties of the marshal and of his assistants. The compensation which each is to receive, is separately provided for, and they are in no way connected. No fraud can be properly imputed to the contract between the parties, by which the compensation that the plaintiff should receive, was fixed at one dollar and twenty - cents the hundred. At the time it was entered into, the sum which the district judge might determine to be reasonable was not known. That allowance was subsequently made, as well as the allowance of the secretary of state, of twenty per cent, for taking the account of mauufactures. When these allowances were made, they were made for the assistant, and he alone was entitled to them. The marshal, when the money was paid to him, received it for the assistant, and hot for himself. By receiving it, he became responsible that he would pay it to the plaintiff. He was, in fact, the plaintiff’s debtor for the amount.

The case of the defendant is not that of an individual authorized by another to receive his money, and therefore held to account for it. He was the agent of the government, ^acting in an official character, and confided in by the government to pay a debt due from it for services performed. The honor, the integrity, the justice of the government required that the payment should be fairly and fully made.

The fact that the plaintiff knew all the circumstances, at the time he received less than his due, and gave an acquittance, does not authorize the defendant to keep what never was his — what he never had any color of claim to keep. By what motives the plaintiff was influenced to give a receipt for money he did not receive, and to leave in the defendant’s hands money he had a right to receive, we do not know. One thing, however, is certain: there is no pretense that the defendant gave any equivalent to the plaintiff. His claim to retain it rests upon the naked assent of the plaintiff that he might do so. A public agent, who retains any part of money, put into his hands to pay the debts of the government, by the assent of the creditor, is not in the situation of a man who voluntarily pays money, in the dischai’ge of an alleged debt, where nothing is due. Such retaining is an abuse of the public confidence; and if the law should permit a public officer, guilty of this abuse, to secure profit to himself, by his misconduct, the mischiefs would be incalculable. The vexations that would be practiced to obtain a receipt for the whole, upon the payment of part, could seldom be made out in proof, while the receipt would always speak for*itself. Were the principle once established, that in a case like the present, the defendant was secure in his gains, it would be proposing encouragement for public agents to practice frauds, both upon the government and its creditors. The public policy and the public justice are both opposed to such doctrine.

The plaintiff is clearly entitled to recover both the principle retained, and interest upon it.

Judgment for plaintiff.  