Respublica against Elizabeth Sergeant and Esther Waters, executors of David Rittenhouse, esq. deceased, 3 Yeates 543

Si-iippen, Chief Justice. The jury find that David Ritten-house’s accounts as treasurer of the commonwealth, were settled on the 17th December 1790, by the comptroller and register general, which settlement was reported to the Supreme Executive Council, and by them approved, and a warrant drawn in his favour for the balance.

The jury further find, that in the year 1800, or 1801, certain errors were discovered,in the treasurer’s account, to the amount of $27,123, and 80 cents, which sum they find due to the commonwealth, subject to the opinion of the court, whether the claim of the commonwealth to that sum was barred by any law or laws of the state.

By the act of 18th February 1785, the comptroller general is authorized to settle all accounts between the commonwealth and the public officers and others, and if he discover any sums of money unaccounted for to the state, to correct former settlements and rectify mistakes ; provided such error be discovered within one year after the award of the comptroller, in any case which shall be laid before the Supreme Executive Council, after which time, the settlements and awards aforesaid shall not be again opened or questioned, but the party, his heirs, executors and administrators shall be for ever quieted touching the same.

By a subsequent act of 1st April 1790, the register general is associated with the comptroller. The former is directed to examine, liquidate and adjust, and the comptroller is to examine and approve, and the Supreme Executive Council are to approve.

This however only respects such demands, as shall thereafter be made, and accounts thereafter to be opened between the state and individuals ; as to former demands and accounts exhibited before the passing of this act, and accounts opened and exhibited before, they were left under the former law to be examined, approved and settled by the comptroller, and examined and entered by the register.

This is precisely the form, in which the accounts of David Rittenhouse were settled: and being approved by the Supreme Executive Council, there is a positive bar as to any future demands, arising from a discovery of errors after one year. It may not be consistent with justice and equity, that a palpable error discovered many years after •*should not be accounted for. But the imperious directions of the law must be obeyed ; and we are compelled [*553 to say by express words, the state is barred from recovering this money after such a length of time. Yeates, J.

The great question on which the determination of this case must turn is, was the settlement made by the comptroller and register general a final settlement, within the true meaning of the act of 18th February 1785 ?

For whatever our sense of natural justice may be, or however strongly our personal feelings, as honest men, may lead us to rectify plain errors in matters of a pecuniary nature, when discovered, we are bound by the imperious words of the law to declare, that a final settlement, approved of by the Supreme Executive Council, cannot “ be opened or questioned after one year, but the party, his “heirs, executors and administrators, shall be forever quieted “concerning the same.” It has been objected on the part of the commonwealth that the account has been passed, with a special exception of errors by both of the accounting officers, and therefore, a re-examination of the account may be gone into, under the plain words of reservation.

This might have been the case, if the treasurer had also subscribed it, or clear proof had been given that he had assented to the exception, provided that it had been done within a reasonable time. The treasurer might have' waved the clause in the law, which was founded on principles of public policy, operating to his benefit. But of this we have no evidence.

The public officers also might have refused to complete a settlement, until a more thorough examination had been had, or the new loan certificates had been brought in. *554] It is also said, that the subscriptions of the comptroller and register general shew by clear words, that the accounts of 1786 (the year wherein the errors took place) were not taken into consideration. The former officer states the account “ exam- “ ined, approved, and settled the above and foregoing accounts, “ saving that any further error,” &c.

The latter states, “ exam- “ ined and entered the above balance, arising from the accounts “in this book, including the account of errors stated by the “ comptroller general, reserving,” &c. The book on the face of it, contains the transactions from the 1st September 1789, until the 9th November following. But the jury having referred to the settlement in the book, make it a part of their special verdict ; and it appears thereby, that errors from the year 1783 to 1789 inclusive, were corrected therein.

Consequently, there *necessarily must have been an examination of the accounts of those years by the accounting officers. But it is further objected, that the act of 1st April 1790, prescribes the mode of settlement; and unless the account has been examined, liquidated, and adjusted by the register general in the first instance, and afterwards examined and approved of by the comptroller general, and finally approved of by the Supreme Executive Council, it is no legal or valid settlement binding on the commonwealth. It appears by the 4th

section of that act, that it is confined “ to demands hereafter made by individuals or bodies politic, “ and to accounts hereafter to be opened between this state and “such bodies politic or individuals.” Consequently, this account including demands prior to the passing of the act, and accounts opened and exhibited before the law had existence, as appears by the Journals of the assembly, is not embraced thereby ; but the act of 28th March 1789, is solely applicable thereto. The comptroller general is directed by the 3d

section of that act, “to submit all accounts which he shall hereafter adjust, “before he shall finally settle the same, to the inspection and “ examination of the register general, and shall take his advice “and assistance in making such settlements, which shall be “laid before the Supreme Executive Council.” It appears moreover, that the mode of signature of the last final settlement of the account in question, on which the appeal is founded, is examined and entered by the register general, and approved and entered by the comptroller general.

The first agrees with the present account; the second in the present account, is examined, approved, and settled, which are highly comprehensive terms. The question recurs, is this account then a final settlement ?

In the special verdict it is stated, that “the accounts of Da“vid Rittenhouse as treasurer, were settled by the comptroller “ and register general; that the settlement was reported to the “Supreme Executive Council, and by the council approved, “ and a warrant drawn in favour of David Rittenhouse for the “ balance, prout the said settlement by the register and comp“troller general, the minutes of the Supreme Executive Coun“cil and warrant.” In the words of the comptroller general, it is said to be “examined, approved and settled,” -and of the register general, to be “ examined and entered.” In the account of 1801, signed by both of the accounting officers, it is called a “ general settlement “ of his accounts.” In the minutes of council of 18th November 1790, it is said to have been “settled” by the register and Comptroller general, and a balance of 5438l. 6s. found due the treasurer, and “ approved of” by council, who in [*555 two days thereafter issued a warrant to him for the balance due to him upon his account, as late treasurer of the state until November 1789, as “settled” by the comptroller and register general on the 17th instant.

With such proofs before us we are compelled to say in the words of the department of accounts, that it was “ a general settlement;” and though errors may have arisen therein in the treasurer’s statement of payments of new loan debt, it cannot at this distance of time be “ again opened or questioned, but “ the defendants, executors of the former treasurer, must be for- “ ever quieted touching the same.” Smith, J.

The fundamental question in this case, upon the solution of which the judgment we must give will depend, is, whether the acts done by the comptroller general, the register general, and the Supreme Executive Council in December 1790, on the accounts of David Rittenhouse, then late treasurer of this commonwealth, amount to a final settlement of them, or not, agreeably to the true intent and meaning of the several acts of assembly on the subject ? That these officers and the Supreme Executive Council, considered the settlement as final, but subject to the reservation, seems clear beyond a doubt.

It was at one period of the argument, contended, that at the time those acts were done, the powers of the comptroller and register general were extinct. The court at once, and I believe unanimously, were of opinion, that there was no foundation for that objection ; and the counsel who made it, gave it up candidly, upon re-consideration.

But it is contended, that the accounts not being exhibited before the 28th March 1789, they were in the first instance to be submitted to, examined, liquidated and adjusted by the register general, and examined and approved by the comptroller general, who should transmit such account to the Supreme Executive Council for their final approbation ; and that this account not having been so acted upon, it was not intended by the officers, that it should be a final settlement. The first impression of this part of the argument, had great weight on my mind. Indeed were it the true construction of the 4th

section of the act of 1st April 1790, (2 St. Laws, 789,) I would be compelled to deem it fatal to the bar set up on the part of the defendants ; because I perfectly agree with the counsel who spoke last, on the part of the commonwealth, “that “ when a rule of law is relied on, to bar a right, it is incumbent “*on tihe party who would avail himself of it, to bring *556] “ himself strictly within it.” But on examining that act, I find that this is not the construction of it.

It declares, “ that “ it is expedient to enable the comptroller general to state the “account between this state and the United States, and to settle “and adjust to the 28th March, 1789, (the day on which the receiver general was appointed,) all accounts between this state “ and individuals, or bodies politic, (other than the United States,) “ and to report to the register general all such balances as were “ then due to or from any individuals or bodies politic for the “purpose directed by the act of 28th March 1789, and the supplement of 30th September 1789.” There is an ambiguityin the rest of the

preamble to this 4th

section ; but the accounts between the 28th March 1789 and the 1st April 1790, must of course be settled according to the directions of the act of 28th March 1789, and the supplement of 30th September 1789; because the act of 1st April 1790, directs, that “ all demands thereafter made, &c. shall in the first instance' be submitted to, “examined, liquidated and adjusted by the receiver general.” Therefore he had no authority to examine, liquidate and adjust in the first instance, any accounts before exhibited.

Even did it not appear by the receipt of the comptroller stated in the argument, that the accounts of David Rittenhouse were exhibited before passing the act of 1st April 1790, were it doubtful, yet as every officer, intrusted with the execution of a public duty, is presumed to execute it properly till the contrary appears, (2 Bla. Rep. 853, 2 Burr. 1073,) and as the account is settled agreeably to the directions of the preceding acts, it would be presumed, that the account was exhibited, before the act of 1st April 1790.

David Rittenhouse having voluntarily resigned his office in the preceding November, would strengthen this presumption ; therefore, the accounts are finally settled according to the existing law, subject to correction within the year, unless the reservation gave a longer time for correction. No longer time could be given, without an express mutual agreement. We have no evidence that there was an agreement to extend the time for correction beyond the year.

It is true, that it was not necessary to make the reservation, because the law gave it; and it is equally true, that if it might be extended beyond the year, it might be extended to one hundred years. Every agreement must be certain, as to the subject matter of it; if entirely uncertain, it is void. This alledged agreement is unlimited as to time, and therefore it is of no effect. I take it for granted, that it was inserted merely out of abundant caution. It cannot con-troul an express law.

It were easy to point out the evil conse*quences of the construction contended for on the part of the state, but where the rules of law are clear, consequences [*557 are out of the question. Upon the whole therefore, I am of opinion, that this was a final settlement within the true intent and meaning of the acts of assembly, no errors being discovered and corrected within the year. And by the act of 18th February 1785, (2 St.

Laws, 251,) § 11, it is provided, that “such error be discovered with- “ in one year, &c. from and after the award of the said officer, “in any case which shall be laid before the Supreme Execu-“tive Council, after which time the settlements shall not be “again opened or questioned, but the party, his heirs, execu“tors or administrators shall be for ever quieted touching the “ same.” I am compelled therefore to declare, that the commonwealth is barred from recovering the sum of 27,123 dollars and 80 cents found by the jury for the commonwealth, against the defendants. Brackenridge, J.

The settlement in this case was general. It embraced every item of debt or credit. The error lay in the addition ; but all was -in view. The settlement was by officers having authority to settle; and the settlement was according to law. It was a final settlement. It was acted upon as such, in drawing a warrant for the balance.

The saving tacked to the settlement, could have no operation, but concurrent and co-extensive with the act of limitation and the reservation therein provided; unless it did necessarily or presumptively follow, that the deceased was a party to the saving, and had given his assent to a farther extent. But the saving was superfluous and inofficial. It was oh one side; for ex officio, the report was made by the act of assembly and the course of the office, immediately to the council, and not delivered to the treasurer. There was no fraud.

It was not the representation of a fact falsely, knowing it to be false, or not knowing whether it was or not, but undertaking to know; for this would constitute a fraud. It was an error and not a fraud. There is therefore nothing to take the case out of the statute; and even against the deceased in his life time, the action in law would have been barred.

On such a settlement, after such a lapse of time, and the death of the party, his mouth closed and no explanation to be given, I do not know, but that equity would have said, that the *account shall not be considered as open; and that, independent of the act there should be a bar. As it is, there can be no doubt. My opinion is in favour of the defendants. Judgment for the defendants. This judgment was afterwards affirmed in the High Court of Errors and Appeals, July 25, 1807.