United States v. Bradley
35 U.S. 343

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U.S. Supreme Court

United States v. Bradley, 35 U.S. 10 Pet. 343 343 (1836)

United States v. Bradley

35 U.S. (10 Pet.) 343

Syllabus

An action was instituted on a joint and several bond given by H., O., and V. to the United States of North America, which, after reciting that H. had been appointed paymaster of the rifle regiment of the array of the United States; conditioned that if H. shall

"well and truly execute and faithfully discharge, according to law and to instructions received by him from proper authority, his duties as paymaster aforesaid, and he, his heirs, executors or administrators shall regularly account when thereto required for all moneys received by him from time to time as paymaster aforesaid with such person or persons as shall be duly authorized and qualified on the part of the United States for that purpose, and moreover pay into their Treasury such balance as, on a final settlement of the said John Hall's accounts, shall be found justly due from him to the said United States, then the obligation should be null and void and of no effect, otherwise to be and remain in full force and virtue."

The Act of Congress of 24 April, 1816, provides

"That all officers of the pay, commissary, and quartermaster's department shall, previous to entering on the duties of their respective offices, give good and sufficient bonds to the United States fully to account for all moneys and public property which they may receive in such sums as the Secretary of War shall direct."

H. became largely indebted to the United States for money advanced to him as paymaster, and suit was brought against the administrators of O., one of his sureties. The bond not having been in its very terms in conformity with the provisions of the law, the sureties claimed that they were not hound by it because of this variance and because the United States had no right to take any other bond but that prescribed by the statute.

By the court:

"So far as the condition of the bond required the paymaster to account for moneys received by him, it substantially follows the provisions of the law, and if the bond be not clearly void from its not being in all respects in conformity with the law, the United States is entitled to recover."

This case differs from the case of United States v. Tingey, 5 Pet. 115, as there was in that case an averment, not denied, that the bond was obtained from the obligors by extortion and oppression under color of office. This must be taken to be a bond voluntarily given by the paymaster and his sureties for a lawful purpose and for the faithful performance of the duties of paymaster.

No rule in pleading is better settled or upon sounder principles than that every plea in discharge or avoidance of a bond should state positively and in direct terms the matter in discharge or avoidance. It is not to be inferred arguendo or upon conjectures.

In the case of the United States v. Tingey, 5 Pet. 115, it was held that, the United States being a body politic, as an incident to its general right of sovereignty, has a capacity to enter into contracts and take bonds in cases within the sphere of its constitutional powers and appropriate to the just exercise of those powers through the instrumentality of the proper department to which those powers are

Page 35 U. S. 344

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 preexisting legislative act. From the doctrine here stated the Court has not the slightest inclination to depart; on the contrary, from further reflection, it is satisfied that it is founded upon the soundest principles of law and the just interpretation of the Constitution.

That bonds and other deeds may in many cases be good in part and void for the residue where the residue is founded in illegality but not malum in se is a doctrine well founded in the common law, and has been recognized from a very early period. The doctrine has been maintained and is settled law at the present day in all cases where the different covenants or conditions are severable and independent of each other and do not import malum in se.

There is no solid distinction in cases like the one before the Court between bonds and other deeds containing conditions, covenants, or grants not malum in se,, but illegal at the common law and those containing conditions, covenants or grants illegal by the express prohibition of statutes. In each case, the bonds or other deeds are void as to such conditions, covenants or grants which are illegal, and are good as to all others which are legal and unexceptionable in their purport. The only exception is when the statute has not confined its prohibition to the illegal conditions, covenants, or grants, but has expressly or by necessary implication avoided the whole instrument to all intents and purposes.

The act of Congress of 1816 nowhere declared that all other bonds not taken in the prescribed form shall be utterly void, nor does such an implication arise from any of the terms contained in the act or 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 our duty 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.

The appointment of a paymaster is complete when made by the president and confirmed by the Senate. The giving a bond for the faithful performance of his duties is a mere ministerial act for the security of the government, and not a condition precedent to his authority to act as a paymaster.

The misdescription of the corporate or politic name of the plaintiffs in the bond by calling them "The United States of North America" instead of "America" is cured by the averment of identity in the declaration.

The United States, in August, 1825, instituted an action of debt in the Circuit Court of the District of Columbia, in the County of Washington, against Phineas Bradley and Andrew Way, administrators of David Ott, upon a joint and several bond to the United States of North America executed by John Hall, David Ott and Nicholas Vanzandt, on 26 May, 1819. The condition of the bond was

"That whereas the above bounden John Hall is appointed

Page 35 U. S. 345

paymaster of the rifle regiment in the Army of the United States aforesaid, now if the said John Hall shall well and truly execute and faithfully discharge according to law and to instructions received by him from proper authority his duties as paymaster aforesaid, and he, his heirs, executors or administrators, shall regularly account, when thereto required, for all moneys received by him from time to time as paymaster aforesaid with such person or persons as shall be duly authorized and qualified on the part of the United States for that purpose, and moreover pay into its Treasury such balance as, on a final settlement of the said John Hall's accounts, shall be found justly due from him to the said United States, then this obligation shall be null, void, and of no effect, otherwise to be and remain in full force and virtue."

To this declaration the defendants pleaded six several pleas, and issues were joined on the second, fourth, and sixth. The third plea alleged that the defendants ought not to be charged with the debt, by virtue of the supposed writing obligatory because John Hall was appointed paymaster long after 24 April, 1816, and after the passing of the act of Congress, entitled "An act for organizing the general staff and making further provision for the Army of the United States," and that this was the only law authorizing or requiring a bond to be given by him to the United States as paymaster or otherwise or authorizing any person to take such a bond, and that the said John Hall, as such paymaster, did not, after being appointed paymaster or at any time give any bond whatsoever to account for all moneys and public property which he might receive, in such sums as the Secretary of War should direct or otherwise in pursuance and execution of the said act of Congress, and that the said John Hall had not, at any time after he was appointed such paymaster as aforesaid, any right, title, or authority whatsoever as such paymaster or in virtue of such his appointment or otherwise howsoever to receive any money or property of the United States or any public money or public property whatsoever to be accounted for in pursuance and execution of the said act of Congress or otherwise to the said United States or to the government or any officer of the government of the said United States, or to any other person or persons whatsoever, in the name or for or in behalf of the said United States, nor in any manner to enter on the duties of his said office or appointment of paymaster or to do, perform, or execute the duties or any of the duties of the same.

Page 35 U. S. 346

To this plea the United States replied that by an act of Congress entitled "An Act for organizing the general staff, and making further provision for the Army of the United States," passed 24 April, 1816, it was, among other things, enacted that all officers of the pay, commissary, and quartermaster's department should, previous to their entering on the duties of their respective offices, give good and sufficient bonds to the United States fully to account for all moneys and public property which they might receive, in such sums as the Secretary of War might direct, and that after the passage of the said law, and while the same was in full force and effect, on 26 May, 1818, the said John Hall was duly appointed paymaster in the rifle regiment, in the Army of the United States, and in consequence of his appointment as paymaster aforesaid, and with the intent of complying with the act of Congress aforesaid, and by the direction of the Secretary of War of the United States, he, the said John Hall, with David Ott, now deceased, and the said Nicholas B. Vanzandt, did execute and deliver, in due form of law, the said writing obligatory in the said defendant's plea mentioned, and the same was then and there accepted by the said United States, and the said John Hall, after the same was so accepted as aforesaid, and under and by virtue of his appointment as aforesaid, did enter upon the performance of the duties of paymaster as aforesaid, and did from time to time receive from the United States, as such paymaster as aforesaid, sundry large sums of money, amounting altogether to more than _____ dollars, to be accounted for by him as such paymaster as aforesaid; and the said United States say, that of the moneys so received by him the said John Hall, of the United States as aforesaid, the sum of _____ dollars was altogether unaccounted for by him, the said John Hall; and that upon a final settlement of the accounts of him, the said John Hall, as paymaster aforesaid, by the proper officers of the government of the United States, there was found to be due from the said John Hall to the United States on account of moneys received by him of the United States as paymaster aforesaid, the sum of _____ dollars, which said sum the said John Hall, in his lifetime, and the said defendants since his death altogether failed to pay to the said United States.

The defendants demurred to this replication and assigned for causes of demurrer:

1. That the bond, with the conditions thereof, was not taken in

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pursuance of the directions nor under the authority of the act, but was essentially different in its purport and effect from the same.

2. That in the replication, the plaintiffs have not averred nor shown any authority for taking the bond with the condition, nor for the delivery and acceptance of the same, but they have shown the same was not taken and delivered and accepted as such bond.

3. That the bond, as described and set forth in the declaration, varies from the supposed writing obligatory in this, that it purports to be an obligation to the United States, without ascertaining what United States, and further purports to be the simple obligation of the said David Ott to pay the United States the sum of twenty thousand dollars, whereas the supposed writing obligatory purports to be an obligation to some states, described as the United States of North America, and further purports to be an official bond to the last named states, executed by one John Hall, the said David Ott, and one N. B. Vanzandt, the two last as sureties for said Hall's performance of certain official duties to the last named states, as set forth in said condition; and further purports to be a bond which the government of the United States of America, or any officer or agent of said government, had no power or authority to take or accept in behalf of the last named United States.

4. That it does not appear in the replication that the bond had been delivered by the obligors or any of them, or accepted or received by any person on behalf of the last named United States by any lawful authority, but the contrary appears.

5. That it does not appear from the replication that John Hall had, at any time after his said supposed appointment to the office of paymaster, any right, title, or authority to enter on the duties of the said office or to receive, in virtue of such appointment, any money or property of the said United States or any public property or public money whatever to be accounted for to the said United States or to the government or any officer or agent thereof, or otherwise to perform and execute the duties or any of the duties of such office, nor that he had lawfully and officially received any such property or money and failed to account for the same or otherwise broken the said condition, but the contrary appears.

6. That the bond and condition are illegal and defective in form and substance, and altogether void and contrary to law.

The fifth plea set forth that the defendants ought not to be charged, because John Hall was appointed a paymaster a long time

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after the Act of Congress of 24 April, 1816, entitled "an act for organizing the general staff," &c., and that at the time of his appointment that act was and yet is in force, and was and yet is the sole and only law, rule and regulation, or authority, under which any bonds to be given by John Hall to the United States as paymaster, or in any manner, can be taken by the United States, or by any officer of the same in the name and behalf of the United States, and was and is the only law, &c., by which his accountability as paymaster for any money or property of the United States by him received was or is prescribed, regulated or governed, and that the said John Hall did fully account for all moneys and public property by him as such paymaster as aforesaid, and after he was appointed such paymaster, received in such sums as the Secretary of War, in the said act of Congress mentioned, did at any time after the said John Hall was so appointed as aforesaid direct to be so received by the said John Hall as aforesaid according to the tenor and effect, true intent and meaning of the said act of Congress.

To this plea the United States replied that John Hall, after being appointed paymaster of the rifle regiment in the Army of the United States, did, from time to time, receive as such paymaster large sums of money, amounting to _____ dollars, to be accounted for by him, and of this amount the sum of _____ dollars was altogether unaccounted for by him, and that upon a final settlement of his accounts as paymaster by the proper officers of the Treasury, he was found indebted _____ dollars, which he and the defendants have failed to pay.

The defendants rejoined, stating that John Hall did not receive the sums of money mentioned in the replication as paymaster in such sums as the Secretary of War had, at any time at or before the receipt of such sums, respectively directed, according to the provisions, true intent and meaning of the said act of Congress, in the three preceding pleas, and in the replications thereto mentioned, prescribing the bonds to be given by the officers therein mentioned, but the said sums of money, amounting to the said sum of _____ dollars as aforesaid, were received by the said John Hall after being appointed such paymaster as aforesaid, without any direction or order of the said Secretary of War, directing the same or any of them to be so received; and so the defendants say that the said David Ott in his lifetime was not, nor were or are the defendants since his death, liable, bound, or in any manner accountable to the said United States by the force and effect of the said act of Congress and writing

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obligatory, for the failure of the said John Hall to account and pay to the said United States the said sums of money, or the said sum of _____ dollars so found due from the said John Hall to the said United States, on account of the said large sums of money received by him, as in the said replication mentioned.

The United States demurred to this rejoinder.

The circuit court decided that the pleas and the demurrers of the defendants were sufficient in law to bar the recovery of the United States, and gave judgment for the defendants.

The United States prosecuted this writ of error.

Page 35 U. S. 357

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