THE UNITED STATES, PLAINTIFFS IN ERROR V. THOMAS FILLEBROWN, JUN.

The United States instituted an action to recover a balance, certified at the treasury, against the defendant on the settlement of his accounts as secretary to the commissioners of the navy hospital fund. Upon this settlement, the defendant set up a claim for compensation, for what he considered extra services, in bringing up and arranging the records of the board, antecedent to his appointment as secretary; and also for commissions on the disbursement of moneys under the orders of the board. These claims were rejected by the accounting officers of the treasury, and were on the trial set up by way of set-off against the demand on the part of the United States. Held: that the allowance of compensation by a fixed salary to the defendant, as the secretary of the board of the navy hospital commissioners, did not exclude his right to claim extra compensation for the disbursement of moneys belonging to the navy hospital fund.

Held: that it was not necessary to entitle the defendant to such compensation, that the board of commissioners should have passed a resolution for the payment of such commissions, and that the claim of commissions should have been sanctioned and settled by the board, in order to enable the defendant to set up a claim against the United States.

The authority of the commissioners to appoint a secretary was not denied; and this same authority must necessarily exist, to appoint agents and superintendents for the management of the business connected with the employment of the fund; and which, in the absence of any regulation by law on the subject, must carry with it a right to determine the compensation to be allowed them.

From the testimony in the case, it is very certain that the secretary of the navy considered the agency of the defendant in relation to the fund as entirely distinct from his duty as secretary, and for which he was to have extra compensation. And it is fairly to be collected from his deposition that all this received the direct sanction of all the commissioners. But whether it did or not, it was binding on the board; for the secretary of the navy was the acting commissioner, having the authority of the board for doing what he did, and his acts were the acts of the board, in judgment of law. It was therefore an express contract entered into between the board or its agent, and the defendant; and it was not in the power of the board, composed even of the same men, after the service had been performed, to rescind the contract, and withhold from the defendant the stipulated compensation. There is no doubt, the board, composed of other members, had the same power over this matter as the former board; but it cannot be admitted that it had any greater power.

[United States v. Fillebrown.]

The rejection therefore of these claims, on the 7th of September 1829, after all the services had been performed by the defendant, can have no influence upon the question.

There is no general principle of law known to the court, and no authority has been shown establishing the doctrine that all the proceedings of such boards must be in writing, or that they shall be deemed void; unless the statute under which they act shall require their proceedings to be reduced to writing. It is certainly fit and proper that every important transaction of the board should be committed to writing; but the law imposes no such indispensable duty. The act of 1811, 4 Laws U. S. 311, constitut ing the fund for navy hospitals, only makes the secretaries of the navy, treasury and war departments, a board of commissioners, by the name and style of commissioners of navy hospitals, and gives some general directions in what way the fund is to be employed: but the mode and manner of transacting their business is not in any way prescribed. It is not true even with respect to corporations, that all their acts must be established by positive record evidence. In the case of the Bank of the United States v. Dandridge, 12 Wheat. 69, this court say, "we do not admit as a general proposition, that the acts of a corporation are invalid merely from an omission to have them reduced to writing, unless the statute creating it, makes such writing indispensable as evidence, or to give them an obligatory force. If the statute imposes such restriction, it must be obeyed. If the board had authority to employ the defendant to perform the services which he has rendered, and these services have been actually rendered at the request of the board, the law implies a promise to pay for the same. This principle is fully established in the case of the United States v. Wilkins, 6 Wheat. 143: which brought under the consideration of the court, the act of the 3d of March 1797, 2 Laws U. S. 594, providing for the settlement of accounts between the United States and public receivers.

The instructions given to the jury by the circuit court were: if the jury believe from the evidence, that the regular duties to be performed by the defendant, as secretary to the commissioners of the navy hospital fund, at the stated salary of two hundred and fifty dollars per annum, did not extend to the receipt and disbursement of the fund: that the duty of receiving and disbursing the fund was required of and performed by him, as an extra service, over and above the regular duties of his said appointment: that it has been for many years the general practice of the government and its several departments to allow to persons, though holding offices or clerkships, for the proper duties of which they receive stated salaries or other fixed compensation, commissions, over and above such salaries or other compensation, upon the receipts and disbursements of public moneys, appropriated by law for particular services, when such receipts and disbursements were not among the ordinary and regular duties appertaining to such offices or clerkships, but superadded labour and responsibility, apart from such ordinary and regular duties and that the defendant took upon himself the labour and responsibility of such se.

[United States v. Fillebrown.]

ceipts and expenditures of the navy hospital fund, at the request of said commissioners, or with an understanding on both sides, that he should be compensated for the same, as extra service, by the allowance of a commission on the amount of such receipts and expenditures: then it is competent for the jury in this case, to allow such commission to the defendant, on the said receipts and disbursements, as the jury may find to have been agreed upon between the said commissioners and the defendant: or, in the absence of any specific agreement, fixing the rate of commissions at such rate as the jury shall find to be reasonable and conformable to the general usage of the government, and its departments; in the like cases. These instructions were entirely correct, and in conformity to the rules and principles of the law on this subject.

Upon the trial of this cause, the defendant offered to prove, by parol testimony, the general usage of the different departments of the government, in allowing commissions to the officers of government upon disbursements of money under a special authority not connected with their regular official duties. The counsel of the United States objected to the admission of parol evidence to prove such usage, but the court permitted the evidence to be given. By the court: we see no grounds for objection against the usage offered to be proved, and the purpose for which it was so offered, as connected with the very terms upon which the defendant was employed to perform the services. It was not for the purpose of establishing the right, but to show the measure of compensation, and the manner in which it was to be paid.

IN error to the circuit court of the United States for the district of Columbia, holden in and for the county of Washington.

The United States, on the 23d day of May 1829, instituted a suit in the circuit court of the district of Columbia, for the recovery of the sum of two thousand and seven dollars and eighty-four cents, to which amount the declaration alleged the defendant in error, Thomas Fillebrown, Jun., to be indebted to the United States, "for sundry matters and articles properly chargeable in account, as stated in a particular account, &c." The declaration also contained the common counts of goods sold and delivered, money laid out and expended, money had and received, and an account stated and settled, &c. The defendant pleaded non assumpsit, &c.

The cause was tried by a jury at May term 1830, and a verdict was given in favour of the United States, for one thousand nine hundred and thirty-seven dollars and seventy cents; which verdict was, on the motion of the counsel for the defendant, set aside, and a new trial ordered.

[United States v. Fillebrown.]

On the first Monday of May 1831, the cause was again tried by a jury, and the following verdict was rendered in favour of the defendant, upon which the court entered judgment.

"And the jurors aforesaid, at the time of bringing in their verdict aforesaid, filed in court here the following certificate, to wit: The jurors empannelled in the case of the United States v. Thomas Fillebrown, Jun., find, upon examining the accounts filed, that the United States are indebted to the said Fillebrown in the sum of four hundred and thirty dollars. "Witness our hands, this 26th day of May 1831.'" From this judgment the United States prosecuted a writ of

error.

On the trial of the case, the deposition of Samuel L. Southard, Esq., late secretary of the navy of the United States, was read in evidence on the part of the defendant.

In the testimony of Mr Southard it was stated, that from the year 1825 to March 1829, he, Mr Southard, was secretary of the navy, and one of the commissioners of "the navy hospital fund." The situation of this fund was such as to require constant and earnest attention. Thomas Fillebrown, Jun., the defendant, was, by the board, appointed its secretary for the discharge of those duties, and his salary was fixed at two hundred and fifty dollars per annum.

Mr Southard was, by the direction of the board, and by previous practice and usage, acting commissioner of the fund, and attended to all matters connected with it, except in cases of new arrangements; the expenditure of money on a new object; or the settlement of a new principle: when the whole board was consulted, and his acts authorized or sanctioned by it. Mr Fillebrown's appointment had the direct and express sanction of the board; and it was understood that he was to discharge his duties at such times, and in such manner, as not to interfere with his duties as a clerk in the navy department; which situation he held at the time of his appointment, and continued to hold.

His appointment was in October or November 1825, but the records of the fund do not show the whole amount of labour which he had to perform; his duties were often both troublesome and laborious.

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[United States v. Fillebrown.]

Some time after his appointment, it was considered proper to procure necessary books, and to make retrospective examinations into records and accounts in certain public offices, and to do whatever should be required to put the fund in a proper condition. This was regularly the duty of the secretary of the fund; but as it related to a period anterior to his appointment, for which he could not receive a compensation in his salary as secretary, it was thought proper to allow him a salary for. such period previous to his actual appointment, as would be proportionate to the additional labour actually performed by him; and such allowance was made about May 1826, and had the approbation of the board. The allowance was regarded in the light of extra service, and was given in this form to show the character of the service rendered by the defendant in error. Subsequent to the appointment of the defendant, the navy hospital fund became sufficient for the purchase of sites for hospitals, and to commence the erection of buildings. The money collected was placed in the hands of the treasurer of the United States, as the treasurer of the fund; and a special agent who should attend carefully to collecting and disbursing it was found indispensable. This did not belong to the duties of the secretary of the board; but it was thought best to give the agency to him on account of his knowledge of the interests connected with the fund, and his fitness for it.

The manner and the forms of transacting the business were arranged with the defendant by Mr Southard, as the acting commissioner; the responsibility attending the payment and transmission of money was imposed upon the defendant:. and at all times he acted uprightly, diligently and skilfully in every thing relating to the subject.

In so doing, it was the understanding of the commissioners that he should receive compensation in the mode and according to the practice of the government in other and similar cases: but Mr Southard said he did not distinctly recollect whether it was to be by a specific sum, or by a per centage on the money disbursed, but was under the impression that it was the latter, that being the usual mode in such cases.

He was under the impression that he did, by the authority of the board, allow one or more of the accounts presented by