JOHN SMITH, T., PLAINTIFF IN ERROR,

v.

UNITED STATES, DEFENDANT IN ERROR

McLean, Justice,

delivered the opinion of the court. — A writ of error is prosecuted in this case, to reverse the judgment of the district court of Missouri, whict exercises the powers of a circuit court. In December 1824, the United States brought an action of debt against the plaintiff in error, to recover $10,000. The claim arises on a bond signed by the plaintiff, as one of the sureties of Alpha Kingsley, who is alleged to have been appointed a paymaster in the army. The bond was executed on the 7th day of February 1810, in which the plaintiff, and one Wilson P. Hunt, bind themselves, jointly and severally, to pay to the United States the above sum. The condition of the obligation states, “ that the said Alpha Kingsley is about to be appointed a district paymaster,” &c., “ who will, from time to time, be charged with funds, to execute and perform the duties attached to that station, for which he will be held accountable,” nnl ^een ma and cannot cure the defect in *the certificate. -* That it is not the body of the transcript which is to give it validity, but the authentication required by the statute. The copy may be strictly accurate in all its parts, and come within the provisions of the law ; yet, if the seal be not affixed, or the certificate be defective, the paper cannot be received as evidence. They consider this certificate to be defective, as every word of it may be true, and yet the copies from the “ books and proceedings” may be inaccui-ate. The auditor certifies nothing from the “ books,” or the “ proceedings of the treasury;” and his language is so explicit in referring to “ copies of originals on file, in his office,” that the three judges think, that the certificate cannot, by reference, or any correct rule of construction, be made to anthenticate copies from “the books of the treasury.” The objection, that the signature of the secretary of the treasury was signed by his chief clerk, seems not to be important. It is the seal which authenticates the transcript, and not the signature of the secretary ; he is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved, in deciding this point, whether the secretary of the treasury can delegate to another the power to do an official act, which the law devolves on him personally.

A majority of the court think, that the transcript from the “books and proceedings of the treasury,” being admitted as evidence, did conduce to prove, not only that Kingsley acted as district paymaster, but his right so to act. In the account, he is charged as “late district paymaster,” with moneys advanced to him for pay, subsistence, forage, bounties and premiums, and contingent expenses of the army ; and credited with disbursements made, under the same heads of expenditures of the army. These transactions not only establish, primd facie, the correctness of the items charged, but show the capacity in which the defendant acted. As district paymaster he receives money, and disburses it in discharge of the duties required of paymasters. His vouchers for moneys expended prove this, and every item stated in the account goes to establish the fact, that the government recognised the official capacity which he assumed. These facts, appear-*3031 *n§ upon the face of the transcript, might *well be considered by J the jury as, at least, conducing to prove the official character of Kingsley.

Although on each of the principal objections relied on as showing error in the proceedings of the district court, a majority of the members of this court think there is no error; yet the judgment of the district court must be reversed, as, on the question of reversal, the minorities unite, and constitute a majority of the court.

This cause came on to be heard, on the transcript of the record, from the district court of the United States for the district of Missouri, and was argued by counsel On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district, court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court for further proceedings to be had therein, as to law and justice may appertain, and in conformity to the opinion of this court.