United States v. Kirkpatrick
22 U.S. 720 (1824)

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U.S. Supreme Court

United States v. Kirkpatrick, 22 U.S. 9 Wheat. 720 720 (1824)

United States v. Kirkpatrick

22 U.S. (9 Wheat.) 720

Syllabus

A bond, given on 4 December, 1813, for the faithful discharge of the duties of his office, by a collector of direct taxes and internal duties, appointed under the Act of 22 July 1813, ch. 16, by the President, on the 11th of November 1813, to bold his office until the next session of the Senate, and no longer, and subsequently appointed by the President, with the advice and consent of the Senate, on 24 January 1814, is to be restricted (as to the liability of the sureties) to the duties and obligations created by the collection acts passed antecedent to the date of the bond.

The second commission issued under the appointment, with the advice and consent of the Senate, operates a revocation of the first commission, issued under the appointment by the President, which was to continue until the end of the next session of the Senate and no longer, and the liability of the sureties in the bond did not extend beyond the duration of the first commission.

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.

The case of People v. Jansen, 9 Johns. 232, distinguished, and so far as it conflicts with the present case overruled.

In general, the debtor has a right to make the appropriation of payments; if he omits it, the creditor may make it, but neither party has a right to make an appropriation after the controversy has arisen.

In cases of long and running accounts, where balances are adjusted merely for the purpose of making rests, the law will apply payments to extinguish the debts according to the priority of time.

Page 22 U. S. 721

This was an action of debt commenced by the United States, in the court below against the defendants in error, J. Kirkpatrick and others, as the obligees of a bond given by them to the United States on 4 December, 1813, conditioned for the true and faithful discharge of the duties of the office of collector of direct taxes and internal duties by Samuel M. Reed, who had been appointed to that office by the President on 11 November, 1813, and, by the terms of his commission, was to hold his office during the pleasure of the President "and until the end of the next session of the Senate of the United States, and no longer." On 24 January, 1814, he was reappointed to the same office by the President, by and with the advice and consent of the Senate, and by the new commission issued to him, was to hold his office "during the pleasure of the President of the United States, for the time being." The pleadings upon which the cause was tried in the court below were extremely informal and confused, but they resulted substantially in the following questions of law, upon which the judge instructed the jury, and a bill of exceptions was taken.

1. Whether the liability of the sureties to the bond was limited to the duties and obligations imposed upon the collector by the Act of 22 July, 1813, ch. 16, and other acts relating to the assessment and collection of direct taxes and internal duties, passed antecedent to the execution of the bond, thus excluding the liability for moneys

Page 22 U. S. 722

collected under subsequent statutes. Upon this point, the court below instructed the jury that the responsibility of the sureties did not extend to the obligations created by the subsequent statutes.

2. Whether the jury was at liberty to impute laches to the government from the delay of the proper officers to call the collector to account at the periods prescribed by law from the year 1814 to 1818. The court left it to the jury to decide whether, under the circumstances of the case, the government had not waived its resort to the sureties.

3. Whether the responsibility of the sureties extended beyond the duration of the first commission. Upon this point the court below charged the jury that the responsibility of the sureties extended to the reappointment of the collector under the new commission until his duties and obligations were varied by the statutes enacted subsequent to the date of the bond.

4. How the payments, which had been made by the collector, were to be appropriated. The balance found due in each account had been carried forward to the succeeding account, and the court was of opinion that the government could not make the appropriation at the time of the trial so as to apply the payments to the extinguishment of debts due subsequent to the time when the sureties ceased to be liable.

Upon these instructions a verdict was found for the defendants, upon which a judgment was rendered in the court below and the cause was brought by writ of error to this Court.

Page 22 U. S. 729

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