Farrar v. United States
30 U.S. 373

Annotate this Case

U.S. Supreme Court

Farrar v. United States, 30 U.S. 5 Pet. 373 373 (1831)

Farrar v. United States

30 U.S. (5 Pet.) 373

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF MISSOURI

Syllabus

F. and B. were sureties in a bond for $30,000 given to the United States as sureties for one Rector, described in the bond as "Surveyor of the Public Lands in the States of Illinois and Missouri and the Territory of Arkansas." Upon looking into all the laws on this subject, it can hardly be doubted that this officer was intended to be included in the provisions of the Act of Congress of May 3, 1822, requiring security of the Surveyor General. Literally, there was at that time provision made under the laws for only one Surveyor General, but it is abundantly evident that the officer who gave this bond was intended to be included in the provisions of that act under the description of a Surveyor General. The indiscriminate use of this appellation in the previous and subsequent legislation of Congress on this subject will lead to this conclusion.

The surveyors of public lands are disbursing officers under the provisions of the act of Congress.

The defendants in the court below pleaded performance, and the plaintiffs alleged as the breach that at the time of the execution of the bond there were in the hands of Rector, as surveyor, to be applied and disbursed by him in the discharge of the duties of his office, for the use and benefit of the United States, diverse sums of money, amounting, &c., and that the said Rector had not applied or disbursed the same or any part thereof for the use and benefit of the United States as in the execution of the duties of his office he ought to have done. The jury found for the plaintiff and assessed the damages for the breach of the condition at $40,000, and the judgment was entered "quod recuperet," the damages, not the debt. This judgment is clearly erroneous.

It would seem that in adopting this form of rendering the judgment, the court below has been misled by the application of the 26th section of the act of 1789 to this subject. That section, if it sanctions such a judgment al all, is expressly confined to three cases -- default, confession or demurrer.

The plaintiffs in error are sureties in an official bond, and it is perfectly clear as to them, a judgment cannot 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 Court feels 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.

Rector was commissioned Surveyor of the Public Lands on 13 June, 1823, and the bond bears date 17 August, 1823. Between 3 March and 4 June in the same year, there had been paid to Rector from the Treasury the sum of money found by the jury, and thus it was paid to him before the date of his commission and before the date of the bond.

By the court:

"For any sum paid to Rector prior to the execution of the bond,

Page 30 U. S. 374

there is but one ground on which the sureties could be held answerable to the United States, and that is on the assumption that he still held the money in bank or otherwise. If still in his hands, he was up to that time bailee to the government; but upon the contrary hypothesis, he had become a debtor or defaulter to the government, and his offense was already consummated. If intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct. They ought therefore to have been let in to proof of the actual state of facts so vitally important to their defense, and whether paid away in violation of the trust reposed in him; if paid away, he no longer stood in the relation of bailee."

Such a case was not one to which the act applies which requires the submission of accounts to the Treasury before discounts can be given in evidence, since this defense goes not to discharge a liability incurred, but to negative its ever existing.

This was an action of debt brought by the United States in the District Court of the United States for the District of Missouri against Bernard G. Farrar, Joseph C. Brown, and others upon a bond dated 7 August, 1823, in the penal sum of $30,000, conditioned that

"Whereas the President of the United States had, pursuant to law, appointed William Rector Surveyor of the Public Lands in the State of Illinois and Missouri and in the Territory of Arkansas, now, therefore, if the said William Rector shall faithfully execute and discharge the duties of his office, then the obligation to be void."

The defendants pleaded that William Rector had performed his duties as surveyor.

The breach assigned in the replication is that at the time of the execution of the bond,

"there were in the hands of the said William Rector as such surveyor, to be by him, in the discharge of the duties of his office, applied and disbursed for the use and benefit of the plaintiffs, divers sums of money amounting in the whole to a large sum of money, to-wit: the sum of $44,780.38, and that the said William Rector hath not applied and disbursed the same or any part thereof for the use and benefit of the plaintiffs, as in the execution of the duties of his said office he ought to have done."

Upon this plea issue was taken, and under the instructions of the court the jury found the issue for the plaintiffs below, and

Page 30 U. S. 375

assessed the damages at $40,456.20, and judgment was rendered for that sum in damages.

At the trial, the plaintiffs produced and read in evidence a duly certified copy of this bond, and a transcript from the books and proceedings of the Treasury, certified by the register of the Treasury and authenticated under the seal of the department. The certificate so annexed, was in the following words:

"I, Joseph Nourse, Register of the Treasury of the United States, do certify that the foregoing report and statement, No. 47, 798, of the account of William Rector, late Surveyor of Public Land in the States of Illinois and Missouri and the Territory of Arkansas, are true copies of the originals on file in this office."

The defendants objected to the reading of this evidence, and the court overruled the objection. The defendants then offered competent evidence to prove that Rector, before the execution of the bond declared on, had expended for his own private use all the money charged to have been received by him from the United States, which proof the court refused to admit. The defendants then offered to prove that Rector, before the execution of the bond, had expended $32,000 of the balance appearing against him in the account given in evidence in legal payments to deputy surveyors, but the court refused to admit the evidence because no claim for credits on account of said payments, or any of them, had been made at the Treasury Department.

They also gave in evidence a letter from John McLean, Commissioner of the Land Office, to William Rector, dated 13 June, 1823, as follows:

"Enclosed you have a commission from the President of the United States appointing you, by and with the advice and consent of the Senate, Surveyor of the Public Lands in the States of Illinois and Missouri and in the Territory of Arkansas, for the term of four years from the date thereof, 20 February, 1823. You will please to qualify yourself by taking an oath to support the Constitution of the United States and by entering into bond with one or more good securities in the sum of $30,000, the securities to be approved

Page 30 U. S. 376

by the United States district judge or attorney, whose certificate must be endorsed on the bond, a form of which is enclosed. The bond and oath to be sent to this office."

As has been stated, the bond sued on is dated on 7 August, 1823, and it appeared by Rector's account with the government, exhibited in the bill of exceptions, that the money now sought to be recovered of the sureties was entrusted to Rector at various times from 3 March to 4 June, inclusive, of the same year.

The defendants below prayed the court to instruct the jury that

"If it finds from the evidence that William Rector, at the time the money with which he is charged was received, had not received a commission as Surveyor of the Public Lands in the State of Illinois and Missouri and the Territory of Arkansas, the present defendants are not liable to this action upon the breach assigned,"

which instruction the court refused to give, but instructed the jury

"That all moneys which had been received by the said William Rector, as Surveyor of the Public Lands in the State of Illinois and Missouri and Territory of Arkansas prior to the execution of the writing obligatory declared on, and which had not been duly disbursed by him in the discharge of the duties of his office or paid back to the government would be considered in his hands in the sense of the issue joined between the parties in this case, and that whether the moneys so received were received between the date of his appointment and the time when the commission came to his hands or after the last mentioned time was immaterial, and whether he had given bond and taken the oath of office before the receipt of the money as aforesaid was equally immaterial."

And further instructed the jury

"That the transcript aforesaid might be received by them as evidence that the money charged in the account had been received by him as surveyor as aforesaid, and was evidence that there were moneys in his hands at the date of the said writing obligatory, as stated in the account contained in the said transcript, to be disbursed in the due discharge and execution of the duties of his office or accounted for to the government as surveyor as aforesaid, subject, however, to be impeached by evidence on the part of the defendants. That the letters testamentary and of administration in evidence in the present

Page 30 U. S. 377

case on the part of the defendants entitle them to the benefit of a credit for the amount of the items which appears by the account to have been suspended for want of proof of the executorship of William Rector and the want of proof that letters of administration had been granted to Thomas C. Rector against the balance appearing on the accounts."

The defendants then moved the court to instruct the jury "that upon the whole evidence, the plaintiff could not recover," which instruction was refused.

The defendants, by their counsel, moved the court for a new trial, for a repleader in arrest of judgment, and for judgment for the defendants non obstante veredicto, all which motions were overruled. They then prosecuted this writ of error.

Page 30 U. S. 385

MR. JUSTICE JOHNSON delivered the opinion of the Court.

This was a suit instituted below against the plaintiffs here to recover a debt of $30,000, for which they had become bound to the United States as sureties for one Rector, who is described in the bond as "Surveyor of the Public Lands in the State of Illinois and Missouri and the Territory of Arkansas." The plea was performance, and the breach alleged in the replication is in these words:

"That at the time of the execution of the bond, there were in the hands of the said William Rector, as such surveyor, to be by him, in the discharge of the duties of his office, applied and disbursed for the use and benefit of the plaintiffs, divers sums of money amounting, &c., and that the said William Rector hath not applied and disbursed the same money or any part thereof for the use and benefit of the plaintiffs, as in the execution of the duties of his said office he ought to have done."

On this plea issue was taken, and at the trial a bill of exceptions was taken to sundry instructions of the court, given or refused, which will be considered in their proper place. Two questions of a more general character must first be disposed of.

The first arises on the form of the judgment, the jury having found for the plaintiffs below on the breach assigned, assessed the damages for breach of the condition at $41,000, and the judgment rendered is "quod recuperet," the damages, not the debt aforesaid. The parties, plaintiffs in error, are the sureties, and it is perfectly clear that as to them a judgment cannot be rendered beyond the penalty, to be discharged on payment of what is actually due, which of course can only be where it is a sum less than the penalty. It is proposed on behalf of the United States to release the surplus, and such is their right, but this still leaves the form of the judgment uncured and unamended.

It would seem that in adopting this form of rendering judgment, the court below has been misled by the application of the 26th section of the act of 1789 to this subject. If so, it is a clear misapprehension, since that section, if it sanctions such

Page 30 U. S. 386

a judgment at all, is expressly confined to three cases: default, confession, or demurrer, with neither of which is the present case affected.

There is no doubt, then, that the judgment must be reversed on this ground; but as other points as well as those made in the bill of exceptions might again embarrass the cause in the court below, and would most probably bring it back again here, it becomes necessary to consider those points.

The second preliminary point alluded to is whether the bond was not taken without law or contrary to law, so as to be illegal and invalid. This turns on the official character assigned to Rector in the bond, or on that in which in fact he is to be regarded in law. He is described as "surveyor of public land" in certain districts, not as Surveyor General. And such in fact was his literal character, for the office of Surveyor General still exists, nominally unique, although a large proportion of his powers and duties have been transferred to the surveyors of public lands in certain districts, subsequently detached from the region over which his powers were originally extended.

In deciding on this point, three questions are to be considered -- first, whether he was bound to give bond at all; secondly, whether the words of the condition embrace the duties of a disbursing officer; and thirdly, whether those duties were incident to his office.

Upon looking through all the laws passed upon this subject, it can hardly be doubted that this officer was intended to be included in the provision of the Act of May 7, 1822, requiring security of the Surveyor General. Literally, there was at that time provision made under the laws for only one surveyor general, but it is abundantly evident that the officer who gave this bond was intended to be included in the provisions of that act, under the description of a surveyor general. The indiscriminate use of this appellation in the previous and subsequent legislation of Congress on the subject will lead us to this conclusion.

Until the passing of the Act of February 28, 1806, all the surveying for the United States was carried on under the provisions of the Act of May 18, 1796, as amended by the Act of May 10, 1800, and under the control and superintendence of the Surveyor General. In the year 1806, after the

Page 30 U. S. 387

purchase of Louisiana, the powers of that officer were extended to the country newly acquired, and he was enjoined to appoint a sufficient number of skillful surveyors as deputies, one of whom, to be appointed with the approbation of the Secretary of the Treasury, was to assume the character of principal deputy and to exercise over the co-deputies the general power vested in and exercised previously by the Surveyor General. The subordinate character of all these officers was distinctly marked by that act, and yet we find that in the Act of March 3, 1807, in the second section of the act, the epithet of Surveyor General is expressly applied to that individual of them who should have been employed in surveying the public lands south of the Tennessee, 4 L.U.S. 111. Yet at a subsequent day, to-wit, March 3, 1815, 4 L.U.S. 834, we find the same officer designated generally as a surveyor of that district of country. So also when the Act of April 29, 1816, was passed, which abolished the appointment of these deputies and conferred the appointment of their present substitutes upon the President, the latter are simply designated as a surveyor, and not Surveyor General. Yet when the Act of May 7, 1822, is passed, requiring bond to be given by these officers, it is expressed altogether in the plural number, as recognizing the existence of more than one surveyor general.

There were then no other officers in existence besides the actual Surveyor General who could come within the literal enactments of that statute, unless we include a surveyor appointed under the provisions of the Act of April 29, 1816. That is the present obligor. And if further confirmation be required to establish the necessary extension of the provisions of that law to the present cause, we have it in the Act of May 26, 1824, in the second section of that act, the language of which expressly recognizes the existence of more than one surveyor general. It is clear then that from the time that the appointment of deputies by the Surveyor General was superseded by the appointment of surveyors by the Treasury Department, the independent character in which those officers then acted identified them with the Surveyor General, so far as to have led to the use of language by Congress, adapted to confounding them with the Surveyor General.

We therefore have no doubt that they were included in the

Page 30 U. S. 388

provisions of the act which required bonds to be taken on their accession to office. Nor do we think that there is any more doubt that the law contemplates them as disbursing officers. It is express in requiring them to give bond for the faithful disbursement of public money, and cui bono do this if they were not regarded as disbursing officers?

But the words of the statute which relate to disbursements are omitted from the condition of this bond, and the only words inserted are "that he shall faithfully discharge the duties of his office." The Court feels no difficulty in maintaining that where the conditions are cumulative, the omission of one condition cannot invalidate bond so far as the other operates to bind the party. But the question is one of much more difficulty whether, where the law is express that the condition shall be both for the faithful disbursement of money and the general discharge of duty, and the latter only is inserted, the former may still be held to be comprised within the general words of the latter. But for the language used in the statute, the Court has no doubt that the case would have been open to proof that the disbursement of money was one of the known and habitual duties of the office, and included in the general words; but whether the omission of the express words which imposed this liability does not preclude a resort to their restoration incidentally by proof is a question on which the Court has felt much difficulty, and which it will not now decide.

The next questions to be considered are those presented by the bill of exceptions, and of these that which goes to the sufficiency of the certificate has already been disposed of in the case of Smith v. United States, ante,30 U. S. 292, in which the same form of certificate was held to be a substantial compliance with the law under which it was resorted to as proof.

The remaining questions grow out of this state of facts. Rector was appointed surveyor, or at least commissioned as such, on 13 June, 1823, and this bond bears date 7 August, 1823. Between 3 March and 4 June in the same year, there had been paid to him from the Treasury the sum of money found by the jury. So that it was paid to him before the commission and before the bond in proof.

Page 30 U. S. 389

On this state of facts, the bill of exceptions asserts three grounds of defense.

1. That the sureties could not be made liable at all for the money so paid.

2. That if at all, they ought to be let into proof that Rector had appropriated the money to his own use before the date of the bond. Or,

3. That he had paid it, or enough of it to cover the penalty of the bond to the use of the United States, before they became bound for him.

On these points we feel no difficulty in affirming that for any sums paid to Rector prior to the execution of the bond, there is but one ground on which the sureties could be held answerable to the United States, and that is on the assumption that he still held the money in bank or otherwise. If still in his hands, he was, up to that time, bailee to the government; but upon the contrary hypothesis, he had become a debtor or defaulter to the government, and his offense was already consummated. If intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct. They ought therefore to have been let into proof of the actual state of facts so vitally important to their defense, and whether paid away in violation or in execution of the trust reposed in him, if paid away, he no longer stood in the relation of bailee. It was not then a case to which that act applies which requires the submission of accounts to the Treasury before discounts can be given in evidence, since this defense goes not to discharge a liability incurred, but to negative its ever existing.

In giving instructions to the jury on these points, therefore, the court erred, as well as in refusing to let the defendants into proof, as prayed, since such testimony presents a direct negative to the breach alleged, which is that the obligor then had the money in his hands.

Judgment reversed and venire facias do novo awarded.

Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.