A-6187, DECEMBER 1, 1924, 4 COMP. GEN. 504

A-6187: Dec 1, 1924

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FEES OF UNITED STATES COMMISSIONERS - BONDS ISSUED IN BLANK A BOND EXECUTED BEFORE A UNITED STATES COMMISSIONER IN WHICH CERTAIN BLANK SPACES WERE LEFT UNFILLED. WHICH WAS SUBSEQUENTLY COMPLETED BY THE COMMISSIONER WITH THE KNOWLEDGE AND CONSENT OF THE PRINCIPAL AND SURETY. IS NOT INVALIDATED SO AS TO PRECLUDE THE COMMISSIONER FROM RECEIVING THE PRESCRIBED STATUTORY FEE FOR EXECUTION. AS SUCH ACTION OF THE PRINCIPAL AND SURETY CONSTITUTED THE COMMISSIONER THEIR AGENT TO SO ACT WHICH THEY ARE ESTOPPED FROM DENYING. 1924: THERE WERE RECEIVED YOUR LETTERS DATED OCTOBER 14 AND OCTOBER 25. IN WHICH THERE IS RECOMMENDED FOR DISALLOWANCE CERTAIN ITEMS FOR WHICH CREDIT WAS CLAIMED AND ALLOWED IN HIS ACCOUNTS FOR THE QUARTER ENDED SEPTEMBER 30.

A-6187, DECEMBER 1, 1924, 4 COMP. GEN. 504

FEES OF UNITED STATES COMMISSIONERS - BONDS ISSUED IN BLANK A BOND EXECUTED BEFORE A UNITED STATES COMMISSIONER IN WHICH CERTAIN BLANK SPACES WERE LEFT UNFILLED, BUT WHICH WAS SUBSEQUENTLY COMPLETED BY THE COMMISSIONER WITH THE KNOWLEDGE AND CONSENT OF THE PRINCIPAL AND SURETY, IS NOT INVALIDATED SO AS TO PRECLUDE THE COMMISSIONER FROM RECEIVING THE PRESCRIBED STATUTORY FEE FOR EXECUTION, AS SUCH ACTION OF THE PRINCIPAL AND SURETY CONSTITUTED THE COMMISSIONER THEIR AGENT TO SO ACT WHICH THEY ARE ESTOPPED FROM DENYING.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, DECEMBER 1, 1924:

THERE WERE RECEIVED YOUR LETTERS DATED OCTOBER 14 AND OCTOBER 25, 1924, INCLOSING REPORT OF EXAMINERS HUBBARD AND WRIGHT UPON THE OFFICE OF UNITED STATES COMMISSIONER A. H. BROWNE FOR THE EASTERN DISTRICT OF LOUISIANA, IN WHICH THERE IS RECOMMENDED FOR DISALLOWANCE CERTAIN ITEMS FOR WHICH CREDIT WAS CLAIMED AND ALLOWED IN HIS ACCOUNTS FOR THE QUARTER ENDED SEPTEMBER 30, 1923, AND I AM REQUESTED TO REOPEN THE SETTLEMENT INVOLVING THIS PERIOD AND RECHARGE TO THE COMMISSIONER THE AMOUNT OF FEES ITEMIZED IN THE EXAMINER'S REPORT, IN SO FAR AS IN MY OPINION THE FACTS WARRANT SUCH ACTION.

THE PERIOD ENDED SEPTEMBER 30, 1923, WAS INCLUDED IN SETTLEMENT NO. O17048-J, DATED MARCH 17, 1924.

THE EXCEPTIONS FILED BY THE EXAMINER FOR THIS PERIOD ARE DESIGNATED, PER EXHIBIT "A" AS ,CHARGES RECOMMENDED FOR DISALLOWANCE FROM THE ACCOUNT OF UNITED STATES COMMISSIONER A. H. BROWNE FOR THE SEPTEMBER QUARTER, 1923," THE SAME BEING STATED AS "CHARGES FOR DRAWING FINAL BONDS APPEARING ON THE FOLLOWING PAGES OF THE ACCOUNT ARE RECOMMENDED FOR DISALLOWANCE ON THE GROUNDS THAT THE BLANK SPACES IN THE INSTRUMENTS HAD NOT BEEN FILLED IN AT THE TIME THE SIGNATURES OF THE PRINCIPALS AND SURETIES WERE AFFIXED. SUCH AN INSTRUMENT IS NOT A BOND AT THE TIME IT IS SIGNED AND DOES NOT BECOME ONE AS A RESULT OF FILLING IN THE BLANK SPACES AFTER IT HAS BEEN EXECUTED BY THE PARTIES THERETO.'

A COPY OF THIS STATEMENT OF EXCEPTIONS WAS FURNISHED COMMISSIONER BROWNE AND IN REPLY THERETO HE STATES THAT:

THIS HAS BEEN THE CUSTOM FOR SEVERAL YEARS, INASMUCH AS WHEN THE ACCUSED AND THE SURETY SIGN BONDS, THEY ARE FULLY COGNIZANT OF WHAT THEY ARE SIGNING, AND THE SURETY IS DULY SWORN AS TO THE AMOUNT AND LOCATION OF HIS PROPERTY. THIS HAS BEEN DONE FOR THE PURPOSE OF FACILITATING MATTERS, AND FOR THAT SOLE REASON ONLY. THE DISTRICT ATTORNEY HAS BEEN FULLY COGNIZANT OF THE PRACTICES, AND HAS NEVER INTIMATED, IN ANY MANNER, HIS OBJECTION TO THE SAME.

IT APPEARS THAT THIS PRACTICE HAS ALSO BEEN BROUGHT TO THE ATTENTION OF THE FEDERAL JUDGE FOR THAT DISTRICT WHO IN A LETTER DATED OCTOBER 20, 1924, COPY OF WHICH HAS BEEN SUBMITTED, STATES:

REGARDING THE PRACTICE OF THE COMMISSIONER TO TAKE BONDS IN BLANK, THIS TOO HAS BEEN ENTIRELY DISCONTINUED, BUT WITH REGARD TO THAT, IT WOULD SEEM TO ME THAT IF THE SURETIES AND PRINCIPALS SIGNED BONDS IN BLANK BEFORE THE COMMISSIONER FOR A PURPOSE WITHIN HIS AUTHORITY, THEY WOULD IMPLIEDLY CONSTITUTE HIM AN AGENT FOR THE FILLING OUT OF THE BOND. THE BOND COULD BE ENFORCED ON DEFAULT AND COMMISSIONER BROWNE WOULD BE ENTITLED TO HIS FEE FOR EXECUTING IT.

THIS VIEW OF THE DISTRICT JUDGE APPEARS TO BE WELL GROUNDED, BEING SUBSTANTIATED BY NUMEROUS DECISIONS.

IN 5 CYC., PAGE 739, IT IS STATED TEXTUALLY THAT:

A BOND IS SAID TO TAKE EFFECT BY DELIVERY, AND THEREFORE WHERE ONE EXECUTES A BOND AND DELIVERS THE SAME TO ANOTHER HE WILL BE BOUND THEREBY, AND HIS LIABILITY WILL NOT BE AFFECTED BY THE FACT THAT THERE WERE BLANKS IN THE INSTRUMENT WHEN EXECUTED, PROVIDED HE EXECUTED IT WITH KNOWLEDGE THEREOF AND IN THE ABSENCE OF FRAUD IN FILING UP SUCH BLANKS, SINCE HE CONSENTS BY IMPLICATION IN SUCH CASE THAT THEY MAY BE SO FILLED. * * * CASES CITED THEREIN, ESSALLENNE V. CITIZENS' BANK, 3 LA.ANN. 663; BELL V. KEEFE, 13 LA.ANN. 524. SEE ALSO IN THIS CONNECTION PALACIOS V. BRASHER (18 COLO. 593) 34 PAC. 251, AND ROSE V. DOUGLAS (52 KAN. 451) 34 PAC. 1046.

FROM THE DECISIONS THUS CITED THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT THAT WHERE A BOND IS SIGNED BY PRINCIPAL AND SURETY WHO ARE NOT ILLITERATE, IN THE ABSENCE OF FRAUD THEY ARE LEGALLY ACCOUNTABLE FOR WHATIS SUBSCRIBED, AND UPON A SIGNING, SEALING, AND DELIVERING TO THE OFFICIAL AUTHORIZED TO EXECUTE SUCH AN INSTRUMENT CONTAINING BLANK SPACES, WHICH CLEARLY REQUIRE TO BE FILLED IN, THERE IS A PRESUMPTION OF AUTHORITY IN THE EXECUTING OFFICIAL TO ACT AS AGENT IN COMPLETING THE INSTRUMENT BY FILLING IN THE BLANKS, AND BOTH THE SURETY AND PRINCIPAL WOULD BE ESTOPPED FROM REPUDIATING SUCH ACTION OF THE AGENT AS TO A THIRD PARTY WHOSE RIGHTS AND INTERESTS HAVE BEEN AFFECTED BY A RELIANCE UPON THE RESULT OF SUCH ACTION.

THE ACT OF MAY 28, 1896, 29 STAT. 184, SECTION 21, PROVIDES THAT A UNITED STATES COMMISSIONER SHALL BE ENTITLED FOR DRAWING A BOND OF DEFENDANT AND SURETIES, TAKING ACKNOWLEDGMENT OF SAME AND JUSTIFICATION OF SURETIES, TO 75 CENTS.

IT IS NOT ALLEGED THAT THE COMMISSIONER DID NOT EXECUTE THE BONDS IN QUESTION, THE ONLY OBJECTION RAISED BEING TO THE FACT THAT HE IN ADDITION FILLED OUT THE BONDS SUBSEQUENTLY. THE FACT THAT SUCH INSTRUMENTS WERE SUBSEQUENTLY COMPLETED WITH THE KNOWLEDGE AND CONSENT OF THE PARTIES WOULD NOT APPEAR TO INVALIDATE THE INSTRUMENT SO AS TO PRECLUDE THE RIGHT TO THE LEGAL FEE FOR EXECUTING THE BOND.

ACCORDINGLY THERE APPEARS TO BE NO GROUND FOR REOPENING THE SETTLEMENT AS MADE AND RECHARGING THE ITEMS LISTED.