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Liability and Discharge of the Sureties in a Bond.

the faithful performance of the duties of the office of deputy collector of direct taxes, under an appointment, for eight townships, designated by name, and the instrument of appointment specially referred to, was afterwards altered by the collector and his deputy, but without the consent of the sureties, so as to embrace another township: Held, that the surety was not responsible for money subsequently collected by his principal, and which he failed to pay over. Ibid. 76. A bond was given on the 4th of December, 1813, for the faithful discharge of the duties of his office, by a collector of direct taxes and internal duties, who had been appointed under the act of July 22d, 1813, ch. 544, by the president, on the 11th of November, 1813, to hold his office until the end of the next session of the senate, and no longer; and was reappointed to the same office, January 24th, 1814, by the president, by and with the advice and consent of the senate, to hold his office during the pleasure of the president for the time being; the liability of the sureties is restricted to the duties and obligations created and imposed by the collection acts passed antecedent to the date of the bond. United States v. Kirkpatrick et al., 9 Wheat. 720; 5 Cond. Rep. 733.

77. The second commission issued by the president, by and with the advice and consent of the senate, and the acceptance of the commission under it by the collector, was a virtual superseding and surrender of the first commission, and the liability of the sureties cannot be extended beyond the period of the first commission. Ibid.

78. In general, laches is not imputable to the government; and where the laws require quarterly, or other periodical accounts and settlements, a mere omission to bring a suit, upon the neglect of the officer or agent to account, will not discharge his sureties. Ibid.

83. The sureties are not responsible for moneys placed by the government in the hands of the principal, after the legal termination of his office; but they are responsible for such as may have come into his hands while he continued in office, and which he subsequently failed to account for and pay over. Ibid.

84. A mere proposition to give time, and suspend the right to sue, upon certain conditions and contingencies which are not proved to have been complied with, or to have happened, will not discharge the sureties. Ibid.

85. When a party who has contracted with the war department to construct a fort, dies before the completion of his contract, and the department refuse to suffer his administrator to proceed to complete the work, the sureties are discharged. United States v. Tillotson et al., 1 Paine's C. C. R. 305.

86. Where, after the breach of the condition of a bond given by a collector of the revenue, the officers of the government take new bonds from the principal, without the knowledge or consent of the surety, enlarging the period of payment, the surety in the first bond is thereby discharged. United States v. Adm'rs. of Hillegas, 3 Wash. C. C. R. 70.

87. Partial payments having been made by the sureties, (subject to all questions,) the application of these payments was made by deducting them from the penalty of the bond, and allowing interest on the balance thus resulting from the commencement of the suit, there having been no previous demand of the penalty, or acknowledgment that the whole was due. M'Gill and others in error v. Bank U. S., 12 Wheat. 511; 6 Cond. Rep. 617.

88. The discharge by the secretary of the treasury, of the principal in a bond to the United States, who is imprisoned under a ca. sa. issued against him, and who has assigned all his pro79. The omission of the proper officer to re-perty for the use of the United States, does not call a delinquent paymaster, in pursuance of the fourth section of the act of congress, of April 24th, 1816, ch. 69, (6 L. U. S. 79,) does not discharge the security. United States v. Vanzandt, 11 Wheat. 184; 6 Cond. Rep. 264.

impair or affect the right of the United States to proceed against the sureties for the amount due upon the judgment, and unpaid. United States v. Stansbury, 1 Peters, 575.

89. It is no objection, in an action of debt 80. The provision requiring the delinquent against one of the obligors in a joint and several paymaster to be recalled, and a new appoint- bond given for duties, that a co-obligor has been ment to be made in his place, is merely direct-taken in execution on a judgment on the same ory, and intended for the security of the govern- bond, and discharged under the act of the 6th ment, but forms no part of the contract with the of June, 1798, ch. 66. Hunt v. United States, 1 surety. Ibid. Also, Dox v. The Postmaster- Gallis. C. C. R. 32. General. 1 Peters, 325.

90. The neglect of the postmaster-general to 81. The statute not removing from office the sue for balances due by postmasters within the delinquent paymaster, ipso facto, but only mak-time prescribed by law, although he is thereby ing it the duty of the proper officer to remove him, the circumstance of new funds being placed in his hands after his delinquency, does not discharge the surety. Ibid.

82. The act of May 15th, 1820, ch. 625, for the better organization of the treasury department, which requires new securities to be given by certain public officers, on or before the 30th of September, 1820, does not expressly, or by implication, discharge the former sureties from their liability. United States v. Nicholls, 12 Wheat. 505; 6 Cond. Rep. 611.

rendered personally chargeable with such balances, is not a discharge of the postmasters or their sureties, upon their official bonds. Nor is an order from the post-office department, directing a postmaster to retain the balances due until drawn for by the general post-office. Locke v. The Postmaster-General, 3 Mason's C. C. R. 446.

91. The sureties in the bond of a contractor, executed in 1818, given to secure the performance of a contract for the supply of rations for the troops of the United States, are not responsi ble for any balance in the hands of the con

Bonds for the Performance of Official Duties.

tractor, at the expiration of the contract, of advances made to him, not on account of that particular contract exclusively, but on account of that and other contracts, as a common fund for supplies, where accounts of the supplies, the expenditures, and the funds, had all been throughout blended indiscriminately by both parties, and no separate portion had been designated, or set apart for the contract of 1818. United States v. Orr's Adm'rs., 8 Peters, 387.

92. To say that the sureties in the bond should be liable for the whole balance, would be to say, that they should be liable for advances made under any other contracts; and if not liable for the whole, the very case supposed in the instruction of the circuit court, precludes the possibility of any legal separation of the items of the balance. Each and all of them are blended, per my et per tout, as a common fund. The case indeed, in the principles which must govern it, ranges itself under that large class of cases, where a party, bound for the fidelity of a clerk, or other agent of A, as keeper of his money or accounts, is held not liable for acts done as the keeper of the money or accounts of A and B. And in the present suit, there is no difference in point of law between the liability of the principal and that of the sureties upon the bond. It is the same contract as to both, and binds both or neither. The United States are not, however, without remedy; for there can be no doubt, that an action in another form would lie against the contractor for any balance, however received, which remained unexpended in his hands after the termination of the service for which the advances were made. Ibid.

93. The receipts of the contractor, for moneys paid to him by the United States, are prima facie evidence that the money was received by him on account of the contract; and it is incumbent in an action on the bond given with sureties for performance of the contract, for the parties to show that the money was not paid on account of the contract as stated in the receipts; but they are not bound to show that it was so stated by mistake or design on the part of the government and the contractor, and intended to be applicable to some other contract. Ibid.

94. If a creditor, without the knowledge and consent of the surety, expressly or tacitly yielded, give time to the principal, by enlarging the credit beyond the period mentioned in the contract, the surety in a bond, or other instrument, is discharged, both at law and in equity. United States v. Adm'rs. of Hillegas, 3 Wash. C. C. R. 70. 95. This rule is applicable, as well to bonds with collateral conditions, as to bonds for the payment of money; and whether the arrangement tends to the benefit of the surety or not: for the reason of the rule is, that the contract, the performance of which is guarantied by the surety, has been changed without his consent. Ibid.

rupt owner, under the sixty-fifth section of the collection act, March 2d, 1799, ch. 128, such owner not being the principal in the bond within the language of the act. Childs v. Shoemaker's Assignee, &c., 1 Wash. C. C. R. 494.

97. Where one of two sureties in a joint and several bond, given to the United States, is sued separately, a discharge of the other surety, by the president, under the provisions of the act of 3d March, 1817, cannot be given in evidence under plea of payment. United States v. Beattie, Gilpin's D. C. R. 97.

98. Where the secretary of the treasury releases an insolvent debtor, under the acts of congress, upon the condition of the assent of his sureties to the release, without prejudice to their liability, that assent must be by the parties, if living, and if dead, by their personal representatives. An assent by the heir of a surety is not sufficient. United States v. Cushman, 2 Sumner's C. C. R. 310.

99. Where sureties bind themselves jointly and severally as principals in a bond, there is no difference as to their liability in equity for the debt, between them and the principal debtor, for whom they are sureties. Ibid.

4. Bonds for the Performance of Official Duties.

100. If a marshal, before the date of his official bond, receive, upon an execution, money due to the United States, with orders from the comptroller to pay it into the Bank of the United States. which he neglects to do, the sureties in his official bond, executed afterwards, are not liable therefor upon the bond, although the money remain in the marshal's hands after the execution of the bond. United States v. Giles et al., 9 Cranch, 212; 3 Cond. Rep. 377.

101. A bond was given by the agent of an unicorporated joint stock company to the directors, for the time being, for the faithful performance of his duties, &c.; the directors were appointed annually, and changed before a breach of the condition of the bond; the agent and his sureties are liable, in an action brought by the obligees after they had ceased to be directors. Anderson v. Longden, 1 Wheat. 85; 3 Cond. Rep.

496.

102. The official bond, given by a receiver of public moneys, does not extinguish the simple contract debt arising from a balance of account due from him to the United States; such bond is not given for the balance due, it is a collateral security for the faithful performancee of the official duties of the officer; and an action may be brought for the recovery of the balance on the account, and an action of debt on the official bond to recover the penalty from the securities. Walton v. United States, 9 Wheat. 651; 5 Cond. Rep. 717.

103. Where a bond was given, conditioned for the faithful performance of the duties of the office of deputy collector of direct taxes, under 96. Where the consignee of a cargo had given an appointment for eight townships, designated bond for the duties, which the surety was com- by name, and the instrument of appointment pelled to pay, and both consignee and owner specially referred to, was afterwards altered by had become bankrupt, the surety is not entitled the collector and his deputy, but without the to a preference over other creditors of the bank-consent of the sureties, so as to embrace another

Bonds for the Performance of Official Duties.

township: Held, that the surety was not responsible for money subsequently collected by the principal, and which he failed to pay over to the obligee. Miller v. Stewart, 9 Wheat. 680; 5 Cond. Rep. 727.

104. A bond given on the 4th of December, 1813, for the faithful discharge of the duties of his office, by a collector of direct taxes and internal duties, who had been appointed (under the act of July 22d, 1813, ch. 544) by the president on the 11th of November, 1813, to hold his office until the end of the next session of the senate and no longer, and was reappointed to the same office, January 24, 1814, by the president, by and with the advice and consent of the senate, to hold his office during the pleasure of the president for the time being; is restricted, as to the liability of the sureties, to the duties and obligations created and imposed by the collection acts passed antecedent to the date of the bond. United States v. Kirkpatrick et al., 9 Wheat. 720; 5 Cond. Rep. 733.

105. The second commission under an appointment made by the president, by and with the advice and consent of the senate, and the acceptance of the commission under it by the collector, was a virtual superseding and surrender of the first commission, and the liability of the sureties did not extend beyond the period of the first commission. Ibid.

mediately transmitted by mail to the president of the office at Middletown, who received them on the morning of Sunday, the 29th of same month; but did not communicate them to the cashier, nor carry them into effect, until the afternoon of the 30th, between four and five o'clock. Held, that the sureties continued liable for his defaults until that time. M-Gill v. The Bank of the United States, 12 Wheat. 511; 6 Cond. Rep. 617.

109. On such a bond, the recovery against sureties is limited to the penalty. Ibid.

110. Partial payments having been made by the sureties, (subject to all questions,) the application of these payments was made by deduct ing them from the penalty of the bond, and allowing interest on the balance thus resulting from the commencement of the suit; there hav ing been no previous demand of the penalty, or acknowledgment that the whole was due; but no interest was allowed on the payments. Ibid.

111. Where a battalion quartermaster gave a bond to the United States, conditioned, "to expend faithfully all public moneys, and to account for all public property;" it was held, that he was bound to account, not with the quartermastergeneral, but with the treasury department; and that this obligation extended to public money as well as public property, and to money expended by him while acting as deputy of the quartermas 106. In general, laches are not imputable to ter-general; and a claim for a credit which had the government; and where the laws require never been presented at the treasury, was requarterly or other periodical accounts and settle-jected. United States v. Lent et al., 1 Paine's C. ments, a mere omission to bring a suit, upon the neglect of the officer or agent to account, will not discharge the sureties in the official bond. Ibid.

107. Where the manager of a lottery drawn in pursuance of an ordinance of the corporation of Washington, gave a bond to the corporation, conditioned, truly and impartially to execute the duty vested in him by the ordinance: Held, that the person entitled to a prize ticket had no right to bring a suit for the prize against the manager, upon his bond, in the name of the corporation, without its consent. Corporation of Washington v. Young, 10 Wheat. 406; 6 Cond. Rep. 163.

C. R. 417.

112. The provision of the 2d section of the act of 3d March, 1797, as to the admission, in evidence, of authenticated copies of bonds, contracts, and other papers, is not restricted to cases where suits are commenced under the authority given by the first section of the act, but applies to all cases where the evidence is required. Ibid.

113. Where, after the breach of the condition of a bond given by a collector of the revenue, the officers of the government take new bonds from the principal, without the knowledge or consent of the surety, enlarging the period of pay ment, the surety in the first bond is thereby discharged. United States v. Adm'rs. of Hillegas, 3 Wash. C. C. R. 70.

108. A. W. M'G. gave a bond to the Bank of the United States, with sureties, conditioned for 114. A bond given by a collector of the inthe faithful performance of the duties of the ternal revenue, with sureties, conditioned that office of cashier of one of the offices of dis- the collector had accounted and would account count and deposit, during the term he should for all taxes collected or to be collected, is not nold that office. The president and directors obligatory on the sureties as to collections preof the bank having discovered that he had been viously made; and a perpetual injunction was guilty of a gross breach of trust, passed a re-granted against proceedings on such bond, exsolution at Philadelphia, on the 27th of October, cept for the sums received by the collector after 1820, "that A. W. M'G., cashier, &c., be, and its execution. Armstrong et al. v. United States, he is hereby suspended from office, till the Peters' C. C. R. 46. further pleasure of the board be known:" and another resolution was passed, "that the president of the office at Middletown be authorized and requested to receive into his care, from A. W. M'G., the cashier, the cash, bills discounted, books, papers, and other property in 116. The condition of a bond, tnat the officer said office, and to take such measures for having shall "well and truly execute the duties of his the duties of cashier discharged, as he may office," includes not only honesty, but reasonable deem expedient." These resolutions were im-skill and diligence. If the duties are performed

115. A statutory bond ought to conform, in substance at least, to the requisitions of the statute, and if it go beyond the law, it is void, at least so far as it does go beyond those requisitions. Ibid.

Bonds for the Performance of Official Duties.

negligently and unskilfully, if they are violated from want of capacity or want of care, they can never be said to be "well and truly executed." Minor v. Mechanics' Bank of Alexandria, 1 Peters, 69.

117. Acts of fraud, or known departure from duty by the board of directors of a bank, will not protect the cashier in his wrongful compliance, nor can a misapplication of the funds of the bank be justified by any vote of the directors, however formal; and therefore, whenever done by the cashier, it is at his peril, and on the responsibility of himself and his sureties. Ibid. 72.

118. The bond of the cashier must be construed to cover all defaults in duty, which are annexed to the office from time to time, by those who are authorized to control the affairs of the bank; and sureties are presumed to enter into the contract, with reference to the rights and authority of the president and directors under the charter and by-laws. Ibid. 73.

119. No act or vote of the board of directors of a bank, in violation of their own duties, and in fraud of the rights and interests of the stockholders of the bank, will justify the cashier of the bank in acts which are in violation of the stipulation in his official bond, "well and truly" | to execute the duties of his office. Acts done by a cashier, under the authority of such a vote, or of a usage permitted by the directors, in violation of the trusts assumed by them, are on the responsibility of the cashier and of his sureties. Ibid. 71.

120. A bond executed by a public officer, for the due performance of his official duties in the disbursement of public money, is to be governed by the laws of the United States as they operate in the District of Columbia: the accounts of the officer being required to be settled at the treasury department. Duncan's Heirs v. The United States, 7 Peters, 435.

121. A bond voluntarily given to the United States, and not prescribed by law, is a valid instrument upon the parties to it in point of law. The United States have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously provided by law. It is an incident to the general right of sovereignty; and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. To adopt a different principle would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments, within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine to such an extent is not known to the supreme court as ever having been sanctioned by any judicial tribunal. The United States v. Tingey, 5 Peters, 115.

122. The act of congress of 1816, nowhere declared, that all other bonds not taken in the prescribed form shall be utterly void; nor does

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such an implication arise from any of the terms contained in the act, nor from any principles of public policy which it is designed to promote. A bond may, by mutual mistake or accident, and wholly without design, be taken in a form not prescribed by the act. It would be a very mischievous interpretation of the act to suppose, that under such circumstances it was the intendment of the act that the bond should be utterly void. Nothing but very strong and express language should induce a court of justice to adopt such an interpretation. Where the act speaks out, it would be the duty of the court to follow it; where it is silent, it is a sufficient compliance with the policy of the act to declare the bond void, as to any conditions which are imposed upon a party beyond what the law requires. This is not only the dictate of the common law, but of common sense. Ibid.

123. The discharge, by the secretary of the treasury, of the principal in a bond to the United States, who is imprisoned under a ca. sa. issued against him, and who has assigned all his property for the use of the United States, does not impair or affect the rights of the United States to proceed against sureties for the amount due upon the judgment and unpaid. The United States v. Stansbury et al., 1 Peters, 575.

124. The claim of the United States upon an official bond, and upon all parties thereto, is not released by the laches of the officer, to whom the assertion of this claim is intrusted by law. Such laches have no effect whatsoever on the rights of the United States, as well against the sureties as the principal in the bond. Dox v. The Postmaster-General, 1 Peters, 318.

125. The plaintiffs in error were sureties in an official bond, and it was perfectly clear, as to them, a judgment could be rendered beyond the penalty, to be discharged on payment of what is due, which of course can only be where it is less than the penalty. The statute expressly requires that the surveyors of the public lands shall give bond for the faithful disbursement of public money, and in this bond the words which relate to disbursement are omitted, and the only words inserted are, "that he shall faithfully discharge the duties of his office." The supreme court feel no difficulty in maintaining, that where the conditions are cumulative, the omission of one condition cannot invalidate the bond so far as the other operates to bind the party. Farrar & Brown v. The United States, 5 Peters, 373.

126. Where the United States instituted an action for the recovery of a sum of money on a bond given with sureties by a purser in the navy, and the defendants, in substance, pleaded that the bond, with the condition thereto, was variant from that prescribed by law, and was under colour of office extorted from the obligor and his sureties, contrary to the statute, by the then secretary of the navy, as the condition of the purser's remaining in office, and receiving its emoluments, and the United States demurred to this plea; it was held, that the plea constituted a good bar to the action. The United States v. Tingey, 5 Peters, 115.

127. No officer of the government has a right,

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Bonds for the Performance of Official Duties.-Payment and Satisfaction of Bonds.

by colour of his office, to require from any subordinate officer, as a condition of his holding his office, that he should execute a bond with a condition different from that prescribed by law. That would be, not to execute, but to supersede the requisites of the law. It would be very different where such a bond was, by mistake or otherwise, voluntarily substituted by the parties for the statute bond, without any coercion or extortion by colour of office., Ibid.

128. A bond was given by the navy agent at New Orleans and his sureties, to the United States, conditioned that he should faithfully account for all public moneys received by him, &c. The sureties to the bond having been sued on the same after his insolvency and decease, claimed that the United States were bound to divide their action, and take judgment against each surety for his proportion of the sum due, according to the law of Louisiana; considering it a contract made there, and to be governed in this respect by the law of that state. Held, That the liability of the sureties must be governed by the rules of the common law; the accountability of the principal being at the city of Washington, to the treasury of the United States; and the bond being joint and several, each is bound for the whole and that the contribution between the sureties is a matter with which the United States have no concern. Cox & Dick v. The United States, 6 Peters, 172.

129. The reception and detention of an official bond by the postmaster-general, for a considerable time, without objection, is sufficient evidence of its acceptance. U. S. v. Norvell, Gilpin's D.

C. R. 120.

130. The postmaster-general has a right to require a bond from a deputy postmaster, for the faithful performance of the duties of his office, although such bond is not expressly required by law. Postmaster-General v. Rice, Gilpin's D. C. R. 561.

131. A bond given by a paymaster to execute the duties of his office faithfully, the condition of which did not, in the very terms, conform to the law of the United States, but which required no duties to be performed, which were not in conformity with the duties of his office, is valid. United States v. Bradley, 10 Peters, 343.

132. The sureties in the bond of a contractor, given to secure the performance of a contract for the supply of rations for the troops of the United States, are not responsible for any balance in the hands of the contractor, at the expiration of the contract, of advances made to him, not on account of that particular contract exclusively, but on account of that and other contracts, as a common fund for supplies, where accounts of the supplies, the expenditures and the funds, had all been, throughout, blended indiscriminately by both parties, and no separate portion had been designated or set apart for the contract of 1818. United States v. Orr's Adm'r., 10 Peters, 399.

133. To say that the sureties in the bond should be liable for the whole balance, would be to say, that they should be liable for advances made under any other contracts; and if not liable for the whole, the very case supposed in

the instruction precludes the possibility of any legal separation of the items of the balance. Each and all of them are blended, per my et per tout, as a common fund. The case indeed, in the principles which must govern it, ranges itself under that large class of cases where a party, bound for the fidelity of a clerk or other agent of A., as keeper of his money or accounts, is held not liable for acts done as the keeper of the money or accounts of A. and B. And in the present suit there is no difference in point of law between the liability of the principal and that of the sureties upon the bond. It is the same contract as to both, and binds both or neither. The United States are not, however, without remedy; for there can be no doubt that an action in another form would lie against the contractor for any balance, however received, which remained unexpended in his hands after the termination of the service for which the advances were made. Ibid.

134. In the case of the United States v. Tingey, 5 Peters, 115, it was held, that the United States, being a body politic, as an incident to their general right of sovereignty, have a capacity to enter into contracts, and take bonds in cases within the sphere of their constitutional powers, and appropriate to the just exercise of those powers, through the instrumentality of the proper department to which those powers are confided, whenever such contracts or bonds are not prohibited by law; although the making of such contracts, or taking such bonds, may not have been prescribed by any pre-existing legislative act. From the doctrine here stated, the supreme court have not the slightest inclination to depart; on the contrary, from farther reflection, they are satisfied that it is founded upon the soundest principles of law, and the just interpretation of the constitution. The United States v. Bradley, 10 Peters, 343.

135. A voluntary bond, taken by authority of the proper officers of the treasury department, to whom the disbursement of public money is intrusted, to secure the fidelity in official duties of a receiver or an agent for disbursing of public moneys, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is an incident to the duties belonging to such a department; and the United States being authorized in a political capacity to take it, there is no objection to its validity in a moral or legal sense. Ibid.

5. Payment and Satisfaction of Bonds. 136. To authorize presumption of payment of a bond, twenty years must have elapsed, exclusive of the disability of the holder to sue for the same. Dunlop & Co. v. Ball, 2 Cranch, 180; 1 Cond. Rep. 383.

137. The principle upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule Ibid.

138. There is no presumption of payment of

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