(charging jury). The question, under the issues in this case, is, whether the money received by Rogers from the treasury of the United States, for which this suit is brought, came into his possession by virtue of his office as a consul of the United States, under the laws of the United States. If it did so come into his possession, it is not denied that he has not faithfully discharged the duty of his office, by truly accounting for this money: and that the bond is forfeited and the defendant liable. By the fourth section of thé act of 28th February, 1803 (2 Story’s Laws, 883 [2 Stat. 203]), it is made the duty of the consuls to provide for the mariners and seamen of the United States, who may be found destitute within their districts, sufficient subsistence, and passages to some port of the United States, "at the expense of the United States.” The performance of this duty, which is strictly official according to law, and indeed prescribed by the act under which the bond was taken, obviously requires money, and it may be to a considerable amount: and from whence is it to be supplied, unless by the treasury of the United States? The consul acts but as the agent of the United States; the payments are to be made for and on their account; and no agent is bound to make advances for his principal, unless by a special contract between them. The United States are bound to furnish their consuls with the funds necessary to provide for destitute seamen, in the manner directed by their laws; and if the moneys, in this case, paid by the United States to Mr. Rogers, were paid to him for the purposes mentioned in the act. to be applied to the relief of destitute seamen, it is my opinion that they came into his possession by virtue of his office, and under the laws of the United States. But if they were remitted to him. for other objects and purposes, not comprehended within his consular duties, as prescribed by the act of congress, under which the bond was taken; then, although he is a debtor to the United States for the amount due, they are not such moneys as the sureties in his bond can be called upon to account for. This is a question of fact for the decision of the jury. The account itself is the only evidence produced to show the nature and object of the advances; and they do not specifically appear there. The ¡jury must, however, decide this matter by the light that is given to them.
A question has been made by the district attorney, on which party the burden of proof is thrown. I think it is on the United States, They assert and claim the forfeiture of the bond. They aver that Rogers received large sums of money; that he did not faithfully discharge the duties of his office; that he has not truly accounted for the moneys which came into his possession by virtue of the act of congress; and it. is with them to show, what money did go into his possession by virtue of the act; what amount, which thus came into his possession, has not been truly accounted for; and in what he has not faithfully discharged the duties of his office. In short, they must make out their case against the defendant.
The jury found a verdict for the defendant.