WRIT of Error to the Circuit Court for the District of New-Jersey. On the return of the Record, it appeared, that a declaration in case had been filed in this action, containing three Counts; the first and second of which, were special Counts for a fraud and deceit, and the third was a general Count, for money had and received by the Defendant to the use of the Plaintiff. The first Count charged the Defendant with an express assumpsit, that in consideration that the Commissioner for settling Continental accounts, would issue a certificate for 4273 dollars 49 ninetieths, he promised his account against the United States was just for that sum, and exhibited certain vouchers to support it; that the account ought to be allowed, and that the vouchers were true and lawful: It averred, that confiding in the said promises, the United States by their said Commissioner, did issue the said certificate: And it assigned as a breach of the said promises, that the Defendant did not regard the same, but craftily deceived the United States in this, that the said certificate ought not to have been issued and delivered, that the account was not, nor was any part of it, for a just debt, but was deceitful, and that the account and vouchers were not true and lawful; whereby the United States had been greatly deceived. — The second Count stated, that whereas the United States had before that time issued and delivered to the Defendant the said certificate, and had accepted and received from him as lawful vouchers for the issuing and delivery thereof, the account aforesaid, together with certain paper writings in the declaration set forth, in consideration thereof he undertook and faithfully promised that the said account was a just and true account, and that the sum mentioned in it was lawfully due from the United States and ought to be so certified, and that the said certain paper writings then and there exhibited as further vouchers for issuing the said certificate, were regular and lawful vouchers: Nevertheless, the Defendant did not regard his said last mentioned promises, inasmuch as the said account was not true, nor was any part thereof due, nor were the said paper writings lawful vouchers, by means whereof the United States were by him deceived and greatly injured. The third count having stated an assumpsit in the usual form, for 8000 dollars received to the Plaintiff's use, concluded that the Defendant not regarding his several promises, for making payment thereof, had not paid the said sum of money, but refused and still refuses to pay the same to the damage of the United States 8000 dollars. The Defendant pleaded non assumpsit, whereupon issue was joined; and on the trial of the cause, the jury found a special verdict of the following tenor: — "The jury find that the commissioner named in the first and second counts, was the lawful officer of the United States, for transacting the business therein mentioned; and that certain regulations were made by Congress, in relation thereto, on the 20th of February, 1782, and the 3d of June, 1784, to which the jury refer. That the Defendant, on the 2d of August 1784, fraudulently exhibited an account, claiming a balance of £. 1602 117 3-4; equal to 4273 49 90 dollars, as due from the United States to him, which account so fraudulently exhibited, and the vouchers therefor, the jury set forth at large. That then and there the Defendant received, through fraud and imposition, from the United States, the said balance, so as aforesaid falsely pretended to be due to him, in a certificate, which the jury set forth in its proper words and figures. That the Defendant gave a receipt for the same, in the words and figures set forth by the jury. That according to law, the Defendant, on the 12th of May, 1791, subscribed and funded the said certificate in the funds of the United States, and beccame a holder of the stock it produced, amounting with the interest, to 4893 8-90 dollars; and that he gave to the United States a receipt for funded debt comprising the said certificate, which was thereupon delivered up and cancelled. BUT whether the said subscription, the subsequent funding of the said 4273 49-90 dollars, with the interest of 619 59-90 dollars, and the stock acquired in virtue thereof as aforesaid, ought to be allowed as payment of the amount of the said certificate by the said United States to the said Defendant, the said jurors know not; and thereupon they pray the advice of the court here in the premifes: And if it ought to be allowed, then they say he was paid the full amount, to wit — 4893 8-90 dollars. AND the jurors further find, that prior to the year 1791, the United States had paid part of the interest due on the said certificate, amounting to 1025 58-90 dollars. That the Defendant on the 2d of August 1784, undertook and promised to the United States, that the said account was just and true; that the sum of 4273 49-90 dollars was justly due to him from the United States, and ought to be so certified; and that the vouchers produced by him in support of the said account were regular and lawful vouchers for issuing and delivering the said certificate to him. That the said account was not just, nor was the sum specified to be due therein, or any part thereof, justly due, but the said account was fraudulent, and the vouchers produced by him in support thereof were not regular and lawful vouchers for issuing and delivering to him the said certificate. AND whether on the whole matter by the jurors so as aforesaid found, the Plaintiff ought to recover against the Defendant, they are ignorant, and pray advice of the court. And if, upon the whole matter, c. it shall appear to the court, that the Defendant did assume in manner and form as the United States complain, then they say he did assume upon himself, c. and they assess the damages by reason of the non-performance of his promises and assumptions aforesaid, 3,939 70-100 dollars, besides costs and charges; and for costs and charges 10 cents: But if it appear to the court that he did not assume, c. then they say he did not assume, c. AND if upon the whole matter aforesaid, by the jurors found in the manner aforesaid, it shall appear to the court that the Defendant did assume as to the sum of 1025 58-90 dollars so as aforesaid paid by the United States, in part of the interest so due on the said certificate, funded as aforesaid, c. then they find he did assume, c. and assess the damages of the United States by reason of the non-performance of the promises within mentioned, besides costs and charges, at 1023 64-100 dollarsfn_, and for costs and charges 10 cents: But if upon the whole matter, c. it shall appear to the court that he did not assume, in construction of law, in manner and form as the United States complain, then they say he did not assume as to the said 1025 58-90 dollars,c." Upon this verdict the CIRCUIT COURT rendered the following judgment, on the 2d of April 1795: "That the United States do recover against the said Thomas Fenemore, their damages aforesaid, by the jurors aforesaid, in form aforesaid, assessed at 4,965 34-100 dollars; and, also, 169 43-100 dollars, for their costs and charges, by the court here to the United States, with their assent, of increase adjudged; which said damages in the whole amount to 5,134 77-100 dollars: And the said Thomas in mercy, c."
On the 7th of August 1787, the Judges delivered their opinions to the following effect:
CHASE, Justice.
The judgment of the Circuit Court ought to be affirmed. Here is the case of a plain fraud. A man sets up a claim, exhibits colourable vouchers to support it, deceives the public officer, obtains a certificate that his claim is just, and, finally, converts that certificate into transferable stock. The transaction is rank from the beginning to the end; and the jury have properly found not only the fraud, but the value of the certificate obtained by it. The United States, by adopting the present mode of proceeding, have precluded themselves from ever disputing hereafter, the validity of the certificate; and they will never, perhaps, be able to indemnify themselves against the subsequent payments of interest, unless Fenemore remains solvent, and accessible to legal process. But, surely, it ought never to have been a subject of argument in a court of justice, whether, on stating a manifest fraud practised upon the public credit and treasury, the United States is entitled to recover an equivalent for the pecuniary injury, from the avowed delinquent.
IREDELL, Justice.
I am clearly of the same opinion. Upon strict technical rules, I had, at first, some doubts, whether the inconsistency of the counts in the declaration would not be fatal: but on the appearance of the rule entered into by consent, for the very purpose of obviating objections on that ground, my mind was perfectly satisfied. The only question, therefore, that remains to be decided, turns upon the right of the United States, to affirm the original transaction; and, if they have that right, it follows, inevitably, that they ought to recover from the Defendant an equivalent for the value of the certificate, which was surreptitiously obtained. I have no difficulty in saying, that the right exists; and that, the public interest, involved in the credit of a public paper medium, required the exercise of the right in a case of this kind. The circulation of the certificate should be unimpaired; but the Defendant ought, at least, to be made responsible in his purse for the fraud. The defence is, indeed, an extraordinary one: it is an atempt to make the very act of fraud, an instrument, or shield, of protection. But, I trust, no man will ever be able to defend himself in an American court of justice upon the ground of his own turpitude. As, therefore, every exception to form has been obviated by consent, and as the special verdict finds every material fact to justify the judgment of the court below, I think that judgment ought to be affirmed.
CUSHING, Justice.
The cause is susceptible of little doubt. The United States had a right to affirm the original transaction, and to proceed, as they have done, for the recovery of the value of the certificate and the interest.
ELSWORTH, Chief Justice.
Giving a reasonable effect to the rule, which the parties themselves have entered into, all objection, as to the form and inconsistencies of the declaration, is obviated. Then, it is to be considered, that the United States had an option, either to affirm, or disaffirm, the original contract; and by the present action they have chosen to affirm it. The special verdict fairly authorised the court below to give judgment for the value of the certificate on the first and second counts, and for the amount of the money received as interest on the third count. With respect, however, to the right of disaffirmance, I with to be understood, as limiting it to the continuance of the certificate in the hands of the original party for, if the certificate had passed into the hands of a bona fide purchaser, even a court of equity would, I think, refuse to invalidate it; and, I am sure, public policy would forbid the attempt.
PATERSON, Justice.
As I joined in giving the judgment of the Circuit Court, it gives me pleasure to be relieved from the necessity of delivering any opinion on the present occasion. But, though I have no doubt on the case now to be decided, it appears to me to be another, and a great, question, how far a bill in equity would reach all the points involved in the original transaction.
Judgment Affirmed.