United States v. Girault
52 U.S. 22 (1850)

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U.S. Supreme Court

United States v. Girault, 52 U.S. 11 How. 22 22 (1850)

United States v. Girault

52 U.S. (11 How.) 22

Syllabus

Where an action was brought by the United States upon the official bond of a receiver of public money, a plea that the United States had accepted another bond from the receiver was bad. The new bond could be no satisfaction for the damages that had accrued for the breach of the condition of the old one.

Pleas also were bad alleging that the receiver had made returns to the Treasury Department admitting that he had received money which the pleas asserted that he never had received. They were bad because they addressed themselves entirely to the evidence, which, it was supposed, the United States would bring forward upon the trial.

Besides, these pleas were bad because the sureties in the bond were bound to protect the United States from the commission of the very fraud which they attempted to set up as a defense.

The case of the United States v. Boyd, 5 How. 29, examined.

Another plea taking issue upon the breach should not have been demurred to. The demurrer being general as to all the pleas, and bad as to this one, judgment was properly given against the plaintiffs in the court below.

By the laws of Mississippi, where a joint action is brought upon a bond or note, the case must be finally disposed of in the court below, with respect to all the parties upon the record, before it is carried up to the appellate court, otherwise it is error.

Where this error occurs, the practice of this Court is to dismiss the case for want of jurisdiction, and remand it to the court below to be proceeded in and finally disposed of.

The United States sued out process against James A. Girault, William M. Gwin, Hay Battle Harrison, and Alexander J. McMurtry, and declared for a debt of $100,000 by bond, bearing date 8 July, 1838, executed by the defendants to the United States, with condition, reciting that the defendant Girault had been appointed by the President of the United States, by commission bearing date 2 June, 1838, receiver of public money for the District of lands subject to sale

Page 52 U. S. 23

at Chocchuma, in the State of Mississippi, that, "if the said Girault shall faithfully execute and discharge the duties of his office, then the obligation to be void," and assigned for breach

"that on the 2d day of June, 1840, the said Girault, as receiver of public money as aforesaid, had received a large amount of public money, to-wit, the sum of $8,952.37, which said sum of money, he, the said James A. Girault, has hitherto wholly neglected and refused, and still neglects and refuses, to pay to the United States, contrary to the form and effect of the said writing obligatory; and of the condition thereof by reason of which,"

&c.

To this the sureties, Gwin, Harrison, and McMurtry (pleaded by leave of the court first had) four several pleas:

1. That after the making of the bond declared on, and after the said 2 June, 1840, mentioned in the assignment of breach, and before the commencement of suit, to-wit, on 25 September, 1840, the said J. A. Girault and McRae Bartlett, George K. Girault, Wilson and Blocker made their act and deed to the plaintiffs in the penal sum of $100,000, reciting the appointment of said James A. Girault as Receiver of Public Money at Chocchuma by commission bearing date 2 June, 1838, with condition

"that if the said James A. Girault had truly and faithfully executed and discharged, and should truly and faithfully continue to execute and discharge, all the duties of said office according to the laws of the United States,"

&c., which bond and condition the plaintiffs did then and there

"receive and accept of and from said James A. Girault, _____, in full lieu, discharge, and satisfaction of the said writing obligatory in the plaintiffs' declaration mentioned, and this the said defendants are ready to verify; wherefore they pray judgment if . . ."

&c.

2. That on 2 June, 1840, and on several days before,

"the said James A. Girault issued receipts as receiver of money, paid for certain lands therein specified, and so returned, at the times aforesaid, to the Treasury Department of the United States, to the amount of ten thousand dollars, and of which the amount in the declaration mentioned is part and parcel, and these defendants say that neither the said ten thousand dollars nor any part thereof was ever paid to or collected by him, the said James A. Girault, which these defendants are ready to verify and prove, wherefore they pray judgment if the said plaintiffs shall have their action against them."

3. The third plea says

"That said J. A. Girault caused to be entered for his own use several parcels of land, amounting to eight thousand acres, and gave and issued receipts for money paid therefor on 2 June, 1840, and on divers other days

Page 52 U. S. 24

before that time, and returned an account to the Treasury Department of the United States in said receipts specified, to the amount of ten thousand dollars, of which amount the sum mentioned in plaintiffs' declaration is part and parcel. . . . And the said defendants aver that neither the said moneys nor any part thereof was ever paid or deposited in said office by the said Girault or anyone for him, and this the defendants are ready to verify, whereof they pray judgment."

4. The fourth plea alleges that the plaintiffs ought not to have their action, because the defendants say

"That no public moneys of the United States came to the hands of the said James A. Girault, as such receiver, after the execution of said bond, nor were there any such public moneys for the payment of which the defendants were chargeable by virtue of the said bond received by him prior to the execution of the same remaining in the hands of the said receiver in his official capacity, at the time of the execution of said bond or at any time thereafter which had not been paid or accounted for according to law, before the commencement of this suit, which the defendants are ready to verify; wherefore they pray judgment,"

&c.

To these pleas the attorney for the United States demurred.

The court sustained the demurrer to the first plea, overruled it as to the second, third, and fourth, and adjudged that the plaintiffs be barred from having their aforesaid action.

To review this judgment, the United States sued out a writ of error and brought the case up to this Court.

Page 52 U. S. 28

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