The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910. Page: 17
xii, 1023 p. ; 23 cm.View a full description of this legislative document.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
UNITED STATES V. ABElL.
The Circuit Court sustained the exceptions, and entered judgment
against the plaintiff. The plaintiff sued out the writ of error, and as-
signs that the Circuit Court erred in sustaining the exceptions to the
petition.
Wm. H. Atwell, U. S. Atty.
Etheridge & McCormick, for defendants in error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
SHELBY, Circuit Judge (after stating the facts as above). This
case was decided against the plaintiff on a general exception to the
petition. The court below, therefore, held that, admitting all the
averments of the petition to be true, it showed no right of action in
the plaintiff. The action is by the payee, the United States of America,
against the makers of the bond sued on. To show fully the case pre-
sented by the petition, we have set it out in full in the statement of
the case, omitting only the exhibits, which may be understood from
the averments of the petition.
When Finks was appointed clerk of the Circuit Court of the United
States for the Northern District of Texas, he was required to give bond
in a sumn to be fixed, and with sureties to be approved, by the court
which appointed him, "faithfully to discharge the duties of his office "
Rev. St. U. S. 795 (U. S. Comp. St. 1901, p. 619). The bond con-
forms to the statute, and contains the condition that he, "by hirriself
and by his deputies, shall faithfully discharge the duties of his office
* * * and properly account for all moneys coming into his hands,
as required by law." The petition shows very clearly and elaborately
that he failed to comply with the condition of his bond. He received,
under rules of the court of which he was clerk, $26,675.04, and has
not properly disbursed or accounted for the same, but, on the con-
trary, has misappropriated and converted the money to his own use.
The money having been received by Finks as clerk under rules of the
court, it is clearly money held by him officially, and it is a breach of his
bond to convert it to his own use. Smith v. United States, 170 U. S.
372, 379, 18 Sup. Ct. 626, 42 L. Ed. 1074; Howard v. United States,
184 U. S. 676, 22 Sup. Ct. 543, 46 L. Ed. 754. It does not seem to be
denied that the conversion of the money was a plain violation of duty
and a breach of the condition of the bond for which the makers are
liable in a proper action. The defense, as we understand it, is that
the suit cannot be maintained by the United States, the payee named
in the bond. The money, it appears, was received by the clerk as de-
posits to secure costs. The several sums making the aggregate, after
deducting his own costs, should have been paid by the clerk to wit-
nesses, attorneys, notaries, marshals, and others who earned and were
entitled to fees out of the funds so deposited. He failed and neglected
to pay out the fund as he should have done, but converted it to his own
use, and failed to turn it over to his successor in office or to otherwise
account for it. It is not denied that if the fund so received had been
the property of the United States, due to the government primarily
and not to others, this action could be maintained; nor is it denied
that any one of the officers or witnesses who earned and to whom was
174 F.-2
Upcoming Pages
Here’s what’s next.
Search Inside
This document can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Legislative Document.
The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910., legislative document, 1910; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38220/m1/29/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.