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

Annotate this Case

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

Page 35 U. S. 347

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

MR. JUSTICE STORY delivered the opinion of the Court.

The original suit was debt on a bond given to the United States by John Hall, Daniel Ott, and Nicholas B. Vanzant on 26 May, 1818, the condition of which, after reciting that Hall was appointed paymaster of the rifle regiment in the Army of the United States, was as follows:

"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 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 this obligation shall be null and void and of no effect, otherwise to be and remain in full force and virtue."

In the court below, the defendant pleaded six several pleas, and issues were joined on the first, second, fourth, and six pleas. To the third and fifth pleas the United States replied. The defendant demurred to the replication to the third plea, and rejoined to the replication to the fifth plea, to which the United States demurred.

Page 35 U. S. 358

Upon these demurrers the court below gave judgment in favor of the defendant.

Upon these pleadings two questions have been made and argued at the bar. 1st. Whether the bond is in conformity to the requirements of the Act of 24 April, 1816, ch. 69, for organizing the general staff and making further provision for the Army of the United States. 2d. If not, whether the bond is wholly void or void only so far as it is not in conformity to that act.

The act (section 6) 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."

It is plain that the condition of the bond is not in its very terms in conformity with this provision. But the argument on the part of the United States is that though in terms it varies from the act, yet inasmuch as all the duties required of the paymaster by law begin and terminate in matters of account, that in substance the condition includes no more than what the prescribed terms of the act contemplate.

In our view of the case it is wholly unnecessary to decide this question, because the only breach alleged is the nonaccounting for, and nonpayment of moneys due to the United States by Hall, upon a final settlement of his accounts. So far as the condition of the bond requires Hall to account for moneys received by him, it substantially follows the provisions of the act of 1816, and if the bond be not wholly void, it is clear that the United States are entitled to recover upon the present pleadings in whatever way the first question may be decided.

The second question, therefore, is that to which the attention of the Court will be addressed. Upon the face of the pleadings, this must be taken to be a bond voluntarily given by Hall and his sureties. There is no averment that it was obtained from them by extortion or oppression under color of office, as there was in United States v. Tingey, 5 Pet. 115. On the contrary, both the third and fifth pleas are wholly barren of any averments on the subject of the giving of the present bond. All they assert in substance is that Hall never gave any such bond as is required by the act of 1816, and that the act of 1816 was the only law regulating the bonds of paymasters, with some collateral averments not material to be

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here mentioned. Now no rule of pleadings 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 matters of discharge or avoidance. It is not to be inferred arguendo or upon conjectures. Indeed, both these pleas are open to the objection of being merely argumentative, and are wholly destitute in the technical precision necessary for pleas in avoidance or discharge. The replication of the United States to the third plea does, however, exclude, so far as that plea is concerned, any inference of extortion or oppression colore officii, for it avers that the bond was given with the intent of complying with the act of Congress and by the direction of the Secretary of War.

It may be added that the bond is not only voluntary, but for a lawful purpose, viz., to ensure a due and faithful performance of the duties of paymaster, a circumstance which must repeal any supposition of an oppressive or unjust design.

But passing from these considerations, the question which first arises is whether a voluntary bond taken by the United States, for a lawful purpose but not prescribed by any law, is utterly void. This question was elaborately argued in the case of United States v. Tingey, 5 Pet. 115, and upon full consideration it was there held by this Court 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 confined, 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. The court laid down this as a general principle only, without (as was then said) attempting to enumerate the limitations and exceptions, which may arise from the distribution of powers in our government and from the operation of other provisions in our Constitution and laws.

But the Court, in applying the principle to the case then before it, further added,

"We hold that a voluntary bond taken by authority of the proper officers of the Treasury Department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver, or an agent for the disbursement, of public moneys, is a binding contract between him and his sureties,

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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, in our view, an incident to the duties belonging to such a department, and the United States having a political capacity to take it, we see no objection to its validity in a moral or a legal view."

From the doctrine here stated we have not the slightest inclination to depart; on the contrary, from further reflection we are satisfied that it is founded upon the soundest principles of law, and the just interpretation of the Constitution. Upon any other doctrine, it would be incompetent for the government in many cases to take any bond or security for debts due to it, or for deposits made of the public money, or even to enter into contracts for the transfer of its funds from one place to another, for the exigencies of the public service, by negotiable paper or otherwise, since such an authority is not expressly given by law in a vast variety of cases. Yet in Dugan v. United States, 3 Wheat. 172, 4 Cond. 223, and in Postmaster General v. Early, 12 Wheat. 136, 6 Cond. 480, this right of the government was treated as unquestionable, and belonging to its general functions, as an appropriate incident.

The United States then, having in our opinion a capacity to take a voluntary bond in cases within the scope of the powers delegated to the general government, by the Constitution, through the instrumentality of the proper functionaries to whom these powers are confided; this consideration disposes of the whole of that part of the argument, and the cases cited in support of it, which are founded upon the distinction between bonds which are given to parties having a capacity to take; and bonds, which are given to parties, who have no such capacity; the former may be good in part; the latter are wholly void.

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. Thus, in Pigot's Case, 11 Co.Lit. 27b, it was said, that it was unanimously agreed in 14 Hen. 8, 25, 26, that if some of the covenants of an indenture, or of the conditions endorsed upon a bond are against law, and some are good and lawful, that in this case the covenants or conditions which are against law, are void ab initio, and the others stand good. And, notwithstanding the decision in Lee v. Coleshill, Cro.Eliz. 529, which, however, is distinguishable, being founded on a

Page 35 U. S. 361

statute; 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, as will abundantly appear from the case of Newman v. Newman, 4 M. & Selw. 66, and the other cases hereafter stated, and many more might be added.

But it has been urged at the bar that this doctrine is applicable only to cases where the case stands wholly at the common law, and not where the illegality arises under a statute, and this distinction derives countenance from what was said in Norton v. Simmes, Hob., where the distinction was taken between a bond made void by statute, and by common law, for (it was there said) upon the statute of 23 Hen. 6, ch. 9,

"If a sheriff will take a bond for a point against that law, and also for a debt due, the whole bond is void; for the letter of the statute is so. For a statute is strict law, but the common law doth decide according to common reason, and having made that void which is against law, lets the rest stand, as in 14 Hen. 8, 15."

In the case of Maleverer v. Redshaw, 1 Mod. 35, which was debt upon a bail bond, Mr. Justice Twisden said he had heard Lord Hobart say

"That the statute, i.e. 23 Hen. 6, ch. 9, is like a tyrant; when he comes, he makes all void. But the common law is like a nursing father, makes void only that part where the fault is, and preserves the rest."

But Mr. Justice Twisden added, that lord Hobart put this doctrine upon the ground that the statute of 23 Hen. 6, ch. 9, had expressly declared that if any of the sheriffs, &c., should take any obligation in any other form, by color of their office, that then it should be void. [Footnote 1] The case in Hobart's Reports was put by the court expressly upon this distinction. And it was well remarked by Mr. Justice Lawrence in Kerrison v. Cole, 8 East's 236, that this case is easily reconcilable with the general principle, for sheriff's bonds are only authorized to be taken with a certain condition, and therefore, if they are taken with any other condition, they are void in toto, and cannot stand good in part only. But that does not apply to different and independent covenants and conditions, in the same instrument, which may be good in part and bad in part, and so it was held by the whole court in that case, and notwithstanding the instrument (a bill of sale and

Page 35 U. S. 362

mortgage of a ship), was, by statute, declared to be "utterly null and void, to all intents and purposes," yet it was held that a covenant in the same instrument to repay the money lent, was good as a personal covenant. The same doctrine was held in Wigg v. Shuttleworth, 13 East's 87; How v. Synge, 15 East's 440; Mouse v. Leake, 8 Term 411; Greenwood v. Bishop of London, 5 Taunt. 727, S.C. 1 Marsh. 292. In this last case, the court took notice of the true line of distinction between the cases, viz., between those cases, where the statute had declared the instrument taken in any other form, than that prescribed by the statute, to be utterly void, and those cases, where it had declared the instrument void only as to the illegal act, grant, or conveyance. It was the case of conveyance affected with simony, so far as the next presentation was concerned; but conveying the advowson in fee. On this occasion, the court said

"There can be no doubt, that the conveyance of an advowson in fee, which is of itself legal; if it be made for the purpose of carrying a simoniacal contract into execution, is void as to so much as goes to effect that purpose, and if the sound part cannot be separated from the corrupt, it is altogether void. It is not, as in the case of usury and some others, avoided by the positive and inflexible enactment of the statute, but left to the operation of the common law, which will reject the illegal part, and leave the rest untouched, if they can be fairly separated."

Here the doctrine was applied directly to the very case of a statute prohibition.

But the case of Doe dem. Thomson v. Pitcher, 6 Taunt. 359; S.C. 2 Marsh R. 61, contains a still more full and exact statement of the doctrine. It was a case supposed to be affected by the prohibitions of the statute of charitable uses; 9 Geo. 2, ch. 36. Lord Chief Justice Gibbs, in delivering the opinion of the court, addressing himself to the argument, that if the deed was void as to part, it must be void as to the whole, said:

"If the objection had been derived from the common law, it is admitted that would not be the consequence. But it is urged that the statute makes the whole deed void. As the counsel for the plaintiff puts it, [Footnote 2] there is no difference between a transaction void at common law, and void by statute. If an act be prohibited, the construction to be put on a deed conveying

Page 35 U. S. 363

property illegally is that the clause which so conveys it is void equally, whether it be by statute or common law. But it may happen that the statute goes further, and says that the whole deed shall be void to all intents and purposes; and when that is so, the court must so pronounce, because the legislature has so enacted, and not because the transaction prohibited is illegal. I cannot find in this act any words which make the entire deed void, &c. I think this grant of that interest in land, which by the terms of the grant is to be applied to a charitable use, is void, and that the deed, so far as it passes other lands not to a charitable use, is good."

Such is the clear result of the English authorities.

In this Court a similar doctrine has been constantly maintained. It was acted upon in the case of Postmaster General v. Early, 12 Wheaton's 136. It was taken for granted in Smith v. United States, 5 Pet. 293, where the objection, indeed, was not taken, but the bond was not in exact conformity to the statute (Act of 16 March 1802, ch. 9, sec. 16), under which it was given by a paymaster. It was also directly before the Court in Farrar and Brown v. United States, 5 Pet. 373, where the bond, taken under the Act of 7 May, 1822, sec. 1, wholly omitted one of the clauses required by the statute to be inserted in the condition. The court there entertained no doubt as to the validity of the bond, and only expressed a doubt whether a breach which was within the direct terms of the omitted clause and yet which fell within the general words of the inserted clause, could be assigned as a good breach under the latter. But if the bond, being a statute bond, was totally void, because the condition did not conform to all the requirements of the act; it would have been wholly useless to have discussed the other questions arising in the cause. Upon the whole, upon this point we are of opinion that there is no solid distinction in cases of this sort 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 prohibitions 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 prohibitions to the illegal conditions, covenants, or grants, but has expressly or by necessary implication avoided the whole instrument to all intents and purposes.

Page 35 U. S. 364

It has been urged, however, in the present case that the act of 1816, ch. 69, does, by necessary implication, prohibit the taking of any bonds from paymasters other than those in the form prescribed by the sixth section of the act, and therefore that bonds taken in any other form are utterly void. We do not think so. The act merely prescribes the form and purport of the bond to be taken of paymasters by the War Department. It is in this respect directory to that department, and doubtless it would be illegal for that department to insist upon a bond containing other provisions and conditions differing from those prescribed or required by law. But the act has no where 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, we think, 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.

We think, then, that the present bond, so far as it is in conformity to the act of 1816, ch. 69, is good, and for any excess beyond that act, if there be any (on which we do not decide), it is void pro tanto. The breach assigned is clearly of a part of the condition (viz., to account for the public moneys), which is in conformity to the act, and therefore action is well maintainable therefor. The case of Supervisors of Alleghany County v. Van Campen, 3 Wend. 48, proceeded upon grounds of a similar nature.

Before concluding this opinion, it may be proper to take notice of another objection raised by the third plea, and pressed at the argument. It is that Hall was not entitled to act as paymaster until he had given the bond required by the act of 1816, in the form therein prescribed, and that not having given any such bond, he is not accountable as paymaster for any moneys received by him from the government. We are of a different opinion. Hall's appointment as paymaster was complete when his appointment was duly made by

Page 35 U. S. 365

the president, and confirmed by the Senate. The giving of the bond was a mere ministerial act for the security of the government, and not a condition precedent to his authority to act as paymaster. Having received the public moneys as paymaster, he must account for them as paymaster. Indeed, the condition of the bond having recited that he was appointed paymaster of the rifle regiment, he and his relatives are estopped to deny the fact, and by the terms of their contract they undertake that "he shall regularly account, when thereto required, for all moneys received by him as paymaster aforesaid."

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, and indeed it has not been insisted on at the argument.

Upon the whole, we are of opinion that the third and fifth pleas, upon which the circuit court gave judgment in favor of the defendant are bad in law, and therefore the judgment ought to be

Reversed and judgment thereon be entered in favor of the United States, and the cause remanded to the circuit court for further proceedings.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia holden in and for the County of Washington and was argued by counsel, on consideration whereof it is the opinion of the Court that there is error in the judgment of the said circuit court in adjudging that the pleadings by the said defendants, in the same cause pleaded, and the matters and things there contained, are sufficient in law to bar the said United States from having and maintaining their action aforesaid. And it is thereupon ordered, and adjudged by this Court, that the judgment of the said circuit court be and the same is hereby reversed, and this Court proceeding to render such judgment as the said circuit court should have rendered in the premises, it is further considered and adjudged by this Court that the third and fifth pleas, so as aforesaid pleaded by the said defendants, are not sufficient in law to bar the said United States of their action aforesaid, against the said defendants; wherefore the said United States ought, notwithstanding the pleas aforesaid, to recover their debt and damages on occasion of the premises. And it is further ordered and adjudged by this Court that the cause be remanded to the said circuit court for further proceedings thereon according to law.

[Footnote 1]

See 2 Saund. 55; id. 59, Williams' note (3).

[Footnote 2]

Instead of these words in 2 Marshall Reports 69, the words are, "The truth is" there is no difference, &c.

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