The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1867-03-28
THI COURTS.

SUPREME CouRr or TUE UNITED STATES
Lia6iiiiy Of any Paymasfsys for Money stolen from
Thsm-Mannu Of PLEADING rsch a dsfsnee 81 bar.--
TIE Usitsd Ststs' piaintg ~ s,ror, ". =: Y.
the Western District Of Texas. 81
BY the oourt-Mr. Justice Nelson delivering the
opinion, W ~
This b q writ Of error 70 the District Court Of
the United ststes for the Western District Of Tens.
Tho suit was brought on the Official bond Of Da.
shell, q psymastsr In the army Of the United
States and Pasohall, one Of his surstss for breach
Of the condition In not paying over or accounting
for public money that came into his hands.
The only defence set up ". By way Of plea or
Of the Government s2s, 900 in gold at Charleston,
g. o. on the 18th Of June, 1857, for the purpose Of
paying Of the troops al Forts Dallas and oapron, In
Florida, and, being compelled TO stop at Pilatka
several days some tlS, 900 the money was stolen
from him-sS, $40 Of which were Afterwards rscov.
ered-and insists that he 10 not liable for the re-
naming to,675 90 lost.
On the trial the Government gave In evidsncs
properly authenticated transcripts from the books
at the Treasury Of the account Of Dashiell showing
1858, Of $40, esS.74 and costs.
Tho defendant then offered evidence tending 10
prove the loss Of tho money set up In the
notice. which was objected 10 on the part OF the
Government, but admitted by the court. snd which
Tho court, among other things instructed the
Jury that the thsft or robbery. II satisfactorily
proved, was . good defence. II II did not occur
from any want Of proper care and vigilance on the
part Of the officer; under which instruction the
Jury found verdict for the Government for the
balance due, after deducting the t9,675.
The case Is here error to the court below.
The question involved has boon already twice
decided BY this court, and nssd not again be sx-
amined The decisions will be found In How,
579, United States vs. Prescott. and others, and II
ID, 100, same 70. Morgan and others.
II Is insisted on the part Of the defendants that
as the plea was not demured 10 but went to issuer
the evidence Of the robbery supported IT, aud that
the court was therefore right In admitting Il and
In giving the Instructions 10 the jury We are not
advised as respects the system Of pleading that may
have been adopted In the court below but whatever
II may be II can hardly justify or require the court
TO give instruction 10 the jury contrary TO law
and especially when the plea ITSELF II Is called,
constituted no defence to the action, but frv-
olous and would have been stricken from the record
| a. such on proper motion In the court below.
This plea In answer 10 but notice Of special mat
ter by way Of q set-of or abatement Of the amount
claimed against tho defendants. II went only to
part Of the cause Of action. To have constituted
Il plea In bar Of the action the amount beyond
the sum lost should have been rendered and brought
into court setting up tho theft as 10 the balance.
| II Is urged that no exception was taken to the
ruling Of the court at the trial, but this Is mis-.
take, II was taken in express terms to the particu
lar instruction In question.
II also instituted that the motion for new trial
in the court below was waiver OF the exception.
The practice Is every day otherwise.
| Judgment reversed, venirs dc MORO.
| |