[Keène vs. Meade.]

money, it certainly could not be pretended that the production of this letter would be indispensable, and exclude all parol evidence of the advance. And yet it would be written evidence. The entry made by the defendant in the cash book was not intended, or understood to be a receipt for the money, but made for a different purpose; and even if a promissory note had been given as written evidence of the loan, the action might have been brought for money lent, and this proved by parol. The note must have been produced on the trial; not however as the only competent evidence of the loan, but to be cancelled, so as to prevent its being put into circulation; a reason which does not in any manner apply to the present case. This objection has been argued at the bar, as if the court permitted the plaintiff to withdraw or expunge that part of the deposition which related to the written acknowledgement, in order to let in the parol evidence. But this view of it is not warranted by the bill of exceptions. This was offered to be done by the plaintiff's counsel, but no such permission was given by the court. The parol evidence was deemed admissible, notwithstanding the written entry of the advance. The parol evidence did not in any manner vary or contradict the written entry, and no objection could be made to it on that ground. Nor does the non-production of the written entry afford any inference, that, if produced, it would have operated to the prejudice of the plaintiff. Nor can it in any manner injure the defendant.. The production of the written entry in evidence would not protect the defendant from another action for the same cause, as seemed to be supposed on the argument. The charge would not be cancelled on the book, but remains the same as before trial; and the defendant's protection against another action depends on entirely different grounds.

By the second bill of exceptions, several objections appear to have been taken to the reading of the depositions. These relate principally to the proceedings before the commissioners.

1. It is objected, that the commissioners have not certified in whose hand writing the depositions were taken down.

[Keene vs. Meade.]

We are not aware of any practice in the execution, and return of a commission, requiring such a certificate. And all that the commission requires is, that the commissioners, having reduced the depositions taken by them to writing, should send the same, with the commission, under their hands and seals, to the judges of the circuit court. But it is immaterial in whose hand writing the depositions are; and it cannot be required that they should certify any immaterial fact. 2. The second exception is, that the commissioners have not certified that they had appointed a clerk, and administered to him the oath required by the commission.

This exception does not appear to be sustained in point of fact.

The commission directs the commissioners to administer the annexed oath to the person whom they shall appoint as clerk. And they certify that they had administered the oath annexed to the commission to James M'Cann, the clerk they were going to employ for the execution of the same. This certificate admits of no other reasonable interpretation, than that the person named was the one appointed by them as clerk, and it states in terms, that the prescribed oath was administered to him. The inference from the certificate is irresistible that the person employed as the clerk was the one to whom the oath was administered. And this is all the commission required. If employed as clerk, it follows of course that he must have been appointed as such. If objections like this are to set aside testimony taken under a commission, but very few returns will stand the test.

3. The third exception is that the witnesses were not required to testify all their knowledge and remembrance of any thing that related to the said cause.

The commission does not prescribe the form of oath, but directs generally, that the witnesses produced should be examined upon their corporal oaths, to be administered by the commissioners, touching their knowledge or remembrance of any thing that may relate to the cause aforesaid.

The commissioners do not certify what oath was adminisVOL. III.-B

[Keene vs. Meade.]

tered to the witnesses. But by way of caption to the interrogatories, state, that in compliance with our duty, we shall examine the witnesses upon the following interrogatories, which we deem necessary first to establish. This form of expression may not be very accurate or intelligible. It may probably arise from what is required of the commissioners by their own oath, which is to examine the witnesses upon the interrogatories now, or which may hereafter, before the said commission is closed, be produced to, and left with the commissioners, by either of the said parties. The interrogatories which followed this caption, were probably those which the commissioners had before them when the examination commenced; and if so, it was proper for them first to examine the witnesses upon those interrogatories, leaving the examination open to such other interrogatories as might be submitted to them before the commission closed. But whatever might be the reason for this particular form of expression, it is not perceived that it warrants any conclusion, that a proper oath was not administered to the witnesses. It cannot be presumed that these interrogatories were framed by the commissioners. It would be against the usual course of taking testimony on a commission; and, in the absence of any evidence to the contrary, we must assume that these interrogatories were framed by the parties in the ordinary course of such proceedings. And if this was a joint commission, as there is reasonable grounds to conclude it was, the interrogatories put to the witnesses did require them to testify as to all their knowledge of any thing that related to the cause, or at all events to whatever the parties supposed related to it. And the commissioners expressly certify in their return, that the witnesses produced and examined were sworn. The form of the oath administered to the witnesses is not set out in the return, nor is it necessary that it should be; and there is nothing from which the court can infer that the proper oath was not administered.

There is therefore no well-founded objection taken to the execution of this commission, and the depositions were pro

[Keene vs. Meade.]

perly admitted in evidence. The judgment of the court below is accordingly affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: on consideration whereof, it is considered, ordered, and adjudged by this court, that the judgment of the said circuit court in this cause bé, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.

THE UNITED STATES, PLAINTIFFS IN ERROR v8. THOMAS Buford, DEFENDANT IN ERROR.

When money of the United States has been received by one public agent from another public agent, whether it was received in an official or private capacity, there can be no doubt but that it was received to the use of the United States; and they may maintain an action against the receiver for the same. [28] B. a deputy commissary general of the United States received from M. a deputy quarter master general of the United States the sum of $10,000, and acknowledged the same by a receipt signed by him with his official description. The United States had a right to treat M. as their agent in the transaction, by making B. their debtor, and to an action brought against him for money had and received, the statute of limitations is no bar. [29] An account stated at the treasury department which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. A treasury statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In these cases the officers may well certify, for they must have official knowledge of the facts stated. [29]

But when moneys come into the hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department. In such a case the claim of the United States for money thus in the hands of a third person must be established, not by a treasury statement, but by the evidence on which that statement was made. [29]

In England any instrument or claim, though not negotiable, may be assigned to the king, who can sue upon it in his own name. No valid objection is perceived against giving the same effect to an assignment to the government of this country. [30]

Where, before the transfer to the United States of an instrument which was the evidence of debt, the term of five years had elapsed, the period after which the statute of limitations was a bar, it can require no argument to show that the transfer of such claim to the United States cannot give it any greater validity than it possessed before the transfer. [30]

In the correct order of pleading it is necessary, that the facts of the plea should · be traversed by the replication, unless matter in avoidance be set up. It is not sufficient that the facts alleged in the replication be inconsistent with those stated in the plea; an issue must be taken on the material allegations of the plea. [31]

This court has repeatedly decided, that the exercise of the discretion of the court below, in re using or granting amendments of pleadings or motions for new trials, affords no grounds for a writ of error. In overruling a motion for leave to withdraw a replication aud file a new one, the court exercised its discretion; and the reason assigned, as influencing that discretion, cannot affect the decision. [31]