Opinion of the Court.

and demands of whatsoever nature, incurred by the receiver, it was adjudged that the purchasers pay the $500, and costs, to the petitioner.

We are of opinion that the first and third questions must be answered in the affirmative, and the second question in the negative; and that the judgment must be affirmed.

Although the decree of sale provided that all claims, debts, and demands accruing during the receivership should be barred unless presented within six months after the confirmation of the sale, yet the decree of confirmation provided that the purchasers should take the property, and that the deed should recite that they took it, subject to all debts, claims and demands, of whatsoever nature, incurred by the receiver, and which might remain unpaid at the termination of his receivership. It does not appear that the purchasers objected to the terms of the decree of confirmation, or appealed to this court from that decree. They might have done both, on the ground that the decree of confirmation varied from the terms of the decree of sale under which they had bought, in destroying the six months' limitation. It was uncertain, under the terms of the decree of sale, what claims might be presented within six months after the confirmation of the sale and be allowed by the court; and, as they became parties to the proceeding by their purchase, they should have seen to it that the terms of the decree of confirmation did not create still further uncertainty, by destroying the six months' limitation. The time of the confirmation of the sale was uncertain, and, inasmuch as the six months, by the decree of March 18, 1886, was to run from the confirmation of the sale, the purchasers were put upon inquiry to see that the term of six months was not varied by the decree of confirmation.

If the purchasers had objected to the decree of confirmation because it destroyed the six months' limitation, they could either have asked the court not to insert such a provision, and, on its refusal, have appealed to this court, or have declined to be bound by the sale, on the ground that the new terms varied from those contained in the decree of sale.

It was within the discretion of the court to abrogate the six

Opinion of the Court.

months' limitation, the fund being substantially a fund in court. Brooks v. Gibbons, 4 Paige, 374; Burchard v. Phillips, 11 Paige, 70; Grinnell v. Merchants' Ins. Co., 1 C. E. Green (16 N. J. Eq.), 283; Lashley v. Hogg, 11 Vesey, 602; Hurley v. Murrell, 2 Tenn. Ch. 620. That being so, as the record does not show on what grounds the court acted, the presumption must be that it properly exercised its discretion.

The first and third questions are answered in the affirmative, and the second question in the negative, and the judgment is

Affirmed.

ROGERS v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 78. Argued November 5, 1891.- Decided November 16, 1891.

Where an action at law was tried by a District Court without a jury, which found the facts and conclusions of law, and entered judgment for the plaintiff thereon, and a bill of exceptions was signed, which stated that the defendant moved the court to direct a verdict for him, on the ground that, as matter of law, no action could be maintained by the plaintiff, and the Circuit Court, on a writ of error, affirmed the judgment, and the defendant then sued out a writ of error from this court: Held, (1) The Circuit Court could not properly consider any matter raised by the bill of exceptions, nor can this court do so, because the trial was not by a jury nor on an agreed statement of facts;

(2) All that the Circuit Court could do was to affirm the judgment of the District Court, and all that this court can do is to affirm the judgment of the Circuit Court, as the latter court had jurisdiction and this court has it.

THE case is stated in the opinion.

Mr. George Bliss for plaintiff in error.

Mr. Solicitor General for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

Opinion of the Court.

On the 12th of March, 1885, the United States brought an action at law in the District Court of the United States for the Southern District of New York, against Lebbeus H. Rogers, to recover $12,000, with interest and costs, the principal sum being the amount of the penalty of a bond executed by Henry W. Howgate as principal, and Rogers and another person as sureties, on the 13th of March, 1878, which bond recited that Howgate, first lieutenant of the twentieth infantry, had been "assigned to duty as a property and disbursing officer, Signal Service, U. S. A.," and was conditioned that Howgate should at all times "during his holding and remaining in said office," carefully discharge the duties thereof, and faithfully expend all public money, and honestly account for the same and for all public property which should or might come into his hands "on account of Signal Service, U. S. Army, without fraud or delay."

The complaint alleged that Howgate entered upon the duties "of property and disbursing officer, Signal Service of the United States Army;" that, while acting as such officer, he did not carefully discharge the duties of his office, and faithfully expend all blic moneys, and honestly account for the same, and for all public property which came into his hands "on account of the Signal Service, U. S. Army," with-' out fraud or delay, in this, that on divers dates during the years 1878, 1879 and 1880, while acting as such officer, he received from the United States, on account of the Signal Service of the United States Army, $133,255.22, which sum he did not faithfully expend and had not accounted for.

The answer of Rogers, besides denying the breaches of the bond alleged in the complaint, set up that the bond was executed, taken and delivered without authority of law and in violation of law.

The parties filed a written stipulation waiving the right of trial by jury, and consenting that the cause be tried by the court without a jury. It was so tried, before Judge Brown. In April, 1887, he filed findings of fact, which stated that he had “heard the testimony of the witnesses." Those findings of fact were as follows:

Opinion of the Court.

"1st. That long prior to 1874 the signal corps, under the Department of War, was organized, and has continued from its organization to the present time under such Department; that during such time such signal corps has had property and disbursing officers.

"2d. That prior to 25th July, 1876, one Henry W. Howgate was a first lieutenant of the 20th infantry of the United States army, attached to the signal corps.

"3d. That on the 25th July, 1876, said Howgate, by a special order, as follows:

"Special Orders, "No. 115.

}

"WAR DEPARTMENT,

"OFFICE OF THE CHIEF SIGNAL OFFICER, "WASHINGTON, D.C. July 25, 1876.

"2. First Lieutenant H. W. Howgate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, is hereby assigned to duty as property and disbursing officer at this office, together with such other duties as may be assigned to him.

"3. First Lieutenant Henry Jackson, 7th cavalry, acting signal officer and assistant, is hereby relieved from duty as property and disbursing officer at this office, and will turn over all government property and funds pertaining to this office, for which he is responsible, to First Lieutenant H. W. Howgate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, who will receive and receipt for the same. "By order of the chief signal officer of the army:

"GARRICK MALLERY,

"Captain 1st Inf'y, Bvt. Lieut. Col. U. S. A., "Acting Signal Officer and Assistant,'

was assigned to duty as property and disbursing officer in the office of the chief signal officer, and he voluntarily accepted such assignment and entered upon the duties thereof.

"That in March, 1878, said Howgate, as principal, and the defendant, as one of the sureties, executed and delivered the

Opinion of the Court.

bond mentioned in, and a copy of which is annexed to, the complaint in this action."

[The fifth finding set forth in hæc verba the condition of the bond.]

"6th. That said Henry W. Howgate, 20th infantry, while acting as property and disbursing officer, Signal Service, U. S. Army, did not carefully discharge the duties thereof and faithfully expend all public moneys and honestly account for the same and for all public property which came into his hands, but did fraudulently and with intent to defraud the plaintiffs embezzle the sum of $133,255.22.

"7th. That the said Howgate is indebted to the United States of America for moneys received as property and disbursing officer, Signal Service, U. S. Army, between the first day of April, 1878, and 31st day of September, 1881, in the sum of $133,255.22.

"8th. That such bond was made, executed, delivered and given by said Howgate and the defendant and the other surety voluntarily.

"9th. That there is now due on said bond the sum of $12,000, with interest from 31st March, 1885, making in all $13,476."

The court found the following conclusions of law:

"1st. That the office of property and disbursing officer, Signal Service, U. S. Army, is one created and duly authorized by law.

"2d. That the duties assigned to such officer are duly authorized by law.

"3d. That duties covered by the bond in this action are authorized by law.

"4th. That the bond in the complaint mentioned is a legal, valid obligation.

"5th. That the plaintiff is entitled to judgment against the defendant for the sum of $12,000, with interest from March 31, 1885, amounting in all to $13,476, for which sum judgment is ordered, with costs."

Thereupon a judgment was entered in the District Court, in favor of the United States, against Rogers, for $13,476 damages and $30.87 costs: