This suit was upon a bond taken by a circuit court of the United
States from its clerk to secure the proper performance of his
duties, and the circuit court could take cognizance of it,
independently of the citizenship of the real parties in interest,
as it was a suit arising under the laws of the United States, of
which the circuit court was entitled to take original cognizance,
concurrently with the courts of the state, even if the parties had
been citizens of the same state; and, although the petition shows a
case of diverse citizenship, jurisdiction was not dependent upon
such citizenship.
That the clerk of the court was authorized, with the sanction or
by order of the court, to receive money paid into court in a
pending cause, is clearly to. be implied from the legislation of
Congress referred to in the opinion of the court.
Congress, by the statutes referred to in the opinion of the
court, intended the bond of a clerk of a circuit court should be
for the protection of all suitors, public or private.
As the clerk had the right to receive the money in question; as
he failed, to the injury of the suitor from whom he received it,
with the sanction of the court in a pending cause, to deposit it as
required by law, and appropriated it to his own use, and as his
bond was for the protection of private suitors as well as for the
government, there is no sound reason why the plaintiff could not
enforce his rights by a suit in the name of the United States for
his benefit.
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Were the appellants entitled, of right, to bring this case
here
Page 184 U. S. 677
from the circuit court of appeals? Has a clerk of a circuit
court of the United States authority to receive money brought into
court by a private suitor, and is he responsible upon his bond if
he does not deposit it as required by statute and appropriates it
to his own use? Is the bond of the clerk for the protection of
private suitors, as well as of the United States? Has a private
suitor the right, without express statutory authority, to sue on
the bond of the clerk in the name of the United States for his
benefit?
These questions are presented by the record, and will be
examined after we shall have stated the facts set out in the
special findings made by the circuit court.
On the 3d day of March, 1887, Warren Watson was duly appointed
clerk of the Circuit Court of the United States for the Western
Division of the Western District of Missouri, and on the same day
he executed, and the court approved, his bond to the United States
in the penalty of $20,000.
He died March 24th, 1892, while acting as clerk, and an
administrator of his estate was appointed April 2, 1892. Notices,
as required by the local law, having been previously given for the
presentation of claims, the administration of the estate was closed
and the administrator discharged on the 11th day of September,
1894. At no time did the United States or the relator, Stewart,
exhibit or present any claim against Watson's estate.
Stewart instituted, February 6, 1891, in the Circuit Court of
the United States, a suit at law against Henry County, Missouri,
upon three bonds of the county, two for $1,000 each and one for
$500. His petition contained three counts. In the first count, he
asked for judgment for $1,010, with interest from September 1,
1887, as the amount due on the first bond of $1,000. The second
count was upon the other bond for $1,000, the third upon the $500
bond.
On the 3d day of March, 1891, the county filed its answer
alleging as to the first count that, on September 6 [1], 1887,
there was due on the bond therein referred to $1,010, and on that
date it had deposited that sum in the National Bank of Commerce of
New York for the payment of the bond and interest,
Page 184 U. S. 678
and tendered the same to the plaintiff as full payment thereof,
but that the plaintiff had refused to accept such payment. The
answer further alleged that the defendant had
"at all times been ready and willing to pay plaintiff said sum
of $1,010 in full payment of said bond and unpaid interest, and now
here again tenders to plaintiff said sum of $1,010 in full payment
of said bond and unpaid interest due thereon, on September 6 [1],
1887, and
now brings the said sum into court."
The answer to the second and third counts was exactly the same,
except that as to the third count the amount named was $505,
instead of $1,010.
On the same day, March 3, 1891, there was entered on the records
of the court in said cause the following order:
"This day comes defendant by its attorney and files answer and
tenders to the plaintiff and
deposits with the clerk the
sum of $2,525 in payment and satisfaction of his cause of action in
the petition set forth. Thereupon a stipulation waiving a trial by
jury is filed herein."
It was found as a fact that Henry County did hand to Watson the
sum of $2,525 as recited in that order.
On June 27, 1891, Stewart, the plaintiff in that suit, filed a
reply, which was a general denial of the facts alleged in the
answer.
On July 2, 1894, more than two years after Watson's death, there
was entered on the records of the court in the cause the
following:
"This day come the parties by their attorneys, the plaintiff by
Karnes, Holmes & Krauthoff, and the defendant by M. A. Fyke,
and a stipulation waiving a jury having been heretofore filed
herein, the hearing of this cause is proceeded with before the
court. Thereupon evidence is heard and the case is submitted to the
court and by the court taken under advisement, with leave to the
parties to file briefs."
On the 11th day of February, 1895, the following order was made
in that case:
"A jury having heretofore been waived in writing by the parties
hereto, and this cause having been submitted to the court on the
pleadings and evidence and argument of counsel, and taken under
advisement by the court, and the court being now fully advised in
the premises, doth find the
Page 184 U. S. 679
issues as follows, to-wit: on the first count of the petition,
the court finds that the principal and interest on bond No. 204 was
duly tendered by defendant at the place of payment on the first day
of September, 1887, and that, after the plaintiff instituted this
action in this court, and at the filing of the answer herein, the
defendant duly paid said sum into court for the use and benefit of
plaintiff, and that plaintiff is entitled to judgment therefor on
the first count of the petition in the sum of $1,010."
The findings on the other counts differed only as to
amounts.
The order in the same case then proceeded:
"It is therefore ordered and adjudged by the court that the
plaintiff have judgment for the recovery of the sum of twenty-five
hundred and twenty-five dollars ($2,525), the aggregate amount
found to be owing to him under the three counts of the petition,
and that plaintiff pay the costs of this action, and that execution
issue therefor. And it further appearing to the court that the said
sum of $2,525, so paid into court as aforesaid, was paid to and
received by Warren Watson, the then clerk of this court, who has
since departed this life without having accounted for said sum of
money so received by him as said clerk, and that said money has
never been turned over to his successor in office, the present
clerk of this court, nor has the same been otherwise accounted for
by said Warren Watson as clerk, or otherwise, it is found and
adjudged by the court that the plaintiff is entitled to have and
recover said money so received by said Warren Watson as clerk
aforesaid, and plaintiff is authorized to proceed therefor on the
bond of said Warren Watson given as clerk as aforesaid."
No appeal was taken from this judgment, and the same became
final and remained in full force and effect and unpaid.
No order or direction as to this money was ever made except as
indicated in the order of February 11, 1895.
When the $2,525 was paid by Henry County to Watson, he deposited
it the same day in a bank to his individual credit, and it was not
at any time treated by him as in the depository of the court. He
never presented to the court any account of the money, nor paid it
either to Henry County or to Stewart. During the pendency of the
Stewart suit against the county,
Page 184 U. S. 680
neither party took any steps for an order in relation to the
money, other than was actually made as above stated, nor made any
objection to the method in which the money was received. Stewart,
however, had no knowledge of the acts of Watson.
It was further found that no demand was ever made on the
defendants or on Watson for the money other than is to be inferred
from the institution of the suit.
The present action was brought October 19, 1895, against the
sureties in Watson's bond, in the name of the United States at the
relation and to the use of David D. Stewart. One of the sureties,
McDonald, pleaded his discharge in bankruptcy, and that plea was
sustained. Judgment was entered against the sureties (except
McDonald) for the sum of $2,525, with interest at six percent from
the commencement of this suit, making total of $3,057.77. 93 F.
719. That judgment was affirmed in the circuit court of appeals.
102 F. 77.
1. The first question is one of the jurisdiction of this Court.
The defendant in error insists that the judgment of the circuit
court of appeals was final, and that therefore no writ of error lay
to this Court.
Is this a correct interpretation of the statutes defining and
regulating the jurisdiction of the courts of the United States?
In all cases in which the judgments of a circuit court of
appeals are not made final by the Act of March 3, 1891, c. 517,
there is of right an appeal or writ of error to this Court where
the matter in controversy exceeds $1,000 in value besides costs. 26
Stat. 826, 828.
Among the cases in which the judgments or decrees of the circuit
courts of appeals are made final are those in which the
jurisdiction of the circuit court "is dependent entirely upon the
opposite parties to the suit or controversy being aliens and
citizens of the United States or citizens of different states." 6
Stat. 828, § 6.
The opposite parties here are Stewart, the relator, a citizen of
Maine, for whose benefit the suit was brought, and the sureties on
the bond of Watson, who are all citizens of Missouri. The
government is the nominal, while Stewart is the real, plaintiff.
His citizenship is to be regarded in any inquiry as to
Page 184 U. S. 681
jurisdiction.
Browne v. Strode, 5 Cranch 303;
McNutt v. Bland,
2 How. 9;
Maryland v. Baldwin, 112 U.
S. 490.
But does it not appear from the petition itself that the case
was one of which the circuit court could take cognizance
independently of the citizenship of the real parties in interest?
This question must receive an affirmative answer. The suit was
directly upon a bond taken by the circuit court in conformity with
the statutes of the United States, and the case depends upon the
scope and effect of that bond and the meaning of those statutes. It
was therefore a suit arising under the laws of the United States,
of which the circuit court (concurrently with the courts of the
state) was entitled to take original cognizance, even if the
parties had been citizens of the same state. 25 Stat. 434, c. 866.
This Court has heretofore decided that a suit upon a bond of a
marshal of the United States was one arising under the laws of the
United States.
Feibelman v. Packard, 109 U.
S. 421,
109 U. S. 423;
Bachrack v. Norton, 132 U. S. 337;
Reagan v. Aiken, 138 U. S. 109;
Bock v. Perkins, 139 U. S. 628,
139 U. S. 630.
The same principle must be held to be applicable to suits upon the
bond of a clerk of a court of the United States. It could not be
that a suit upon the bond of a marshal was one arising under the
laws of the United States, and that a suit upon the bond of a clerk
of a court of the United States was not of that class.
It results that, although the petition shows a case of diverse
citizenship, jurisdiction was not dependent entirely upon such
citizenship. Jurisdiction was likewise invoked, and rightfully,
upon federal grounds. And as the case was one which could not have
been brought here directly from the circuit court, the final
judgment of the circuit court of appeals could be reviewed in this
Court upon writ of error sued out by the defendants.
2. We now come to the merits of the case. The bond in suit was
taken under the authority of section 795 of the Revised Statutes as
amended by the Act of February 22, 1875, 18 Stat. 333, c. 95. That
section reads:
"§ 795. The clerk of every court shall give bond, in a sum to be
fixed and with sureties to be approved by the court which appoints
him, faithfully to discharge
Page 184 U. S. 682
the duties of his office, and seasonably to record the decrees,
judgments, and determinations of the court of which he is clerk,
and a new bond may be required whenever the court deems it proper
that such bond should be given. A copy of every bond given by a
clerk shall be entered on the journal of the court for which he is
appointed, and the bond shall be deposited for safe keeping as the
court may direct. A certified copy of such entry shall be
prima
facie proof of the execution of such bond and of the contents
thereof."
The conditions of the bond, as set forth in this section, were
the same as those prescribed by the Judiciary Act of 1789, 1 Stat.
76, c. 20.
It will be observed that section 795 does not name the obligee
in the bond, and leaves its amount to be fixed by the court. But
the third section of the act of 1875 provided, as did the Judiciary
Act of 1789, that the clerks should give bond to the United States.
The act of 1875 also required bond
"in the sum of not less than five and not more than twenty
thousand dollars, to be determined and regulated by the Attorney
General of the United States."
And the same act authorized the Attorney General to require a
bond in a sum not to exceed $40,000 whenever the business of the
courts should make it necessary.
It must be taken as indisputable that the money in question was
paid by Henry County in satisfaction of Stewart's claim or cause of
action. It must also be taken as indisputable upon this record that
the deposit was made with Watson as clerk in the presence and with
the assent of the court, although no order was entered expressly
requiring the money to be paid to the clerk or expressly directing
him to receive it. But all this is necessarily to be implied from
the terms of the order of March 3, 1891, which states that Henry
County -- presumably in the presence of the court --
deposited
the money with the clerk. It would be a very narrow
interpretation of the words of that order to hold that the money
was paid to Watson without the knowledge, approval, or sanction of
the court, or that it was paid to him as an individual, and not in
his capacity as clerk. The
Page 184 U. S. 683
order was equivalent to one expressly stating that the money was
paid by direction of the court to Watson as clerk.
But it is suggested that, in the absence of a statute distinctly
so providing, the clerk was not entitled to receive the money
deposited in payment and satisfaction of Stewart's claim. It is
true that no statute declares in words that a clerk may receive
money brought into court for the purposes of a pending suit. But it
is clear that Henry County was entitled to bring into court and
tender to its adversary the amount it was willing to pay in
satisfaction of his claim. It cannot be that it was the duty of the
judge of the court himself to have received the money and
personally deposited it as required by law. No one has ever
supposed that a judge was under obligation to perform such
services. Who, then, was to receive the money? Plainly it was the
duty of the clerk, who was the arm of the court, kept its records
showing money paid in by suitors or officers, and was under bond
conditioned that he would faithfully perform all the duties of his
office. He was allowed by statute a commission "for
receiving, keeping, and paying out money in pursuance of
any statute or order of court." Rev.Stat. § 828. It was well said
by Judge Caldwell, delivering the unanimous judgment of the circuit
court of appeals, that
"for more than a century, the clerks of the circuit courts of
the United States have been receiving and paying out the moneys of
suitors in those courts in the usual and customary manner, and
during that time. neither the clerks nor the suitors nor the court
ever dreamed that they were performing this service as private
individuals, and were not officially responsible for the moneys
they were receiving as such clerks."
That the clerk was authorized, with the sanction or by order of
court, to receive money paid into court in a pending cause is
clearly to be implied from the legislation of Congress. It will be
well to trace the history of this question through the statutes
enacted from time to time.
By the Act of March 1, 1793, c. 20, clerks of district courts
were allowed one and one-quarter percent commission on "all money
deposited in court." 1 Stat. 332, 333; 1 Stat. 625, c. 19, § 3.
Money received by a marshal in a prize cause was held by
Page 184 U. S. 684
Mr. Justice Story to be properly paid over to the clerk, and
that he was entitled to commissions under the statute. That
practice, he held, was of great importance for the "security of
suitors."
The Avery, (1814) 2 Gall. 308, 311.
See also
Blake v. Hawkins, 19 F. 204;
In re Goodrich, 4 Dill.
230;
Smith v. Morgan City, 39 F. 572. In
Fagan v.
Cullen, 28 F. 843, 844, Mr. Justice Brown held that moneys
received by the marshal should, under sections 995 and 996 of the
Revised Statutes, either be immediately deposited by him "
or
paid to the clerk and by him deposited."
By an act approved April 18, 1814, c. 62, it was provided that,
upon the payment of money into a district or circuit court, to
abide the order of the court, the same should be deposited in an
incorporated bank to be designated by the court, there to remain
until it was decided to whom it of right belonged. If there was no
such bank, then the court could "direct" the money to be deposited
according to its discretion. 3 Stat. 127. Could not such direction
have been given to the clerk?
The act of 1814 was supplemented by one approved March 3, 1817,
c. 108, making it the duty of circuit and district courts "to cause
and direct" all moneys remaining in such courts, and all moneys
subject to their order, to be deposited in a branch of the Bank of
the United States, in the name and to the credit of the court. § 1.
The same direction was given by the act as to all moneys thereafter
paid into said courts, "or received by the officers thereof." § 2.
All payments out of such moneys were to be entered of record by the
clerk. § 3. It was further provided that, if any "clerk of such
court," or other officer thereof, "receiving any such moneys,"
should refuse or neglect to obey the order of the court for
depositing the same, such clerk or other officer was liable to be
forthwith proceeded against by attachment for contempt. § 4. The
same act imposed upon the clerk the duty of presenting an account
at each session of court of all moneys remaining therein. § 5. 3
Stat. 395.
The acts of 1814 and 1817 were technically repealed by the Act
of March 24, 1871, entitled "An Act Relating to Moneys Paid into
the Courts of the United States." 17 Stat. 1, c. 2. But
Page 184 U. S. 685
the act of 1871 retained substantially all the provisions of the
two former acts, and added others. That act provided, among other
things, that all moneys in the registry of any court of the United
States, or "in the hands or under the control of any officer of
such court, which were received in any cause pending or adjudicated
in such court," should within thirty days after the passage of the
act be deposited with the Treasurer, an assistant treasurer, or a
designated depositary of the United States, in the name and to the
credit of such court; that all such moneys which were thereafter
paid into such courts, "or received by the officers thereof,"
should be forthwith deposited in like manner; that if any
clerk or other officer of a court of the United States
deposited any money belonging in the registry of the court in
violation of that act, or should retain or convert it to his own
use, or to the use of any other person, he should be deemed guilty
of embezzlement, and on conviction be punished by a fine of not
less than $500 and not more than the amount embezzled, or by
imprisonment for a term of not less than one year nor more than ten
years, or both, at the discretion of the court, and that if any
person should knowingly receive from a
clerk or other
officer of a court of the United States any money belonging in the
registry of the court as a deposit, loan, or otherwise, in
violation of the act, he should be deemed guilty of embezzlement,
and be punished as therein provided.
These provisions of the act of 1871 have been substantially
reproduced in the following sections of Revised Statutes:
"§ 798. At each regular session of any court of the United
States, the
clerk shall present to the court an account of
all moneys remaining therein, or subject to its order, stating in
detail in what causes they are deposited, and in what causes
payments have been made, and said account and the vouchers thereof
shall be filed in the court."
"§ 995. All moneys paid into any court of the United States,
or received by the officers thereof, in any cause pending or
adjudicated in such court, shall be forthwith deposited with
the Treasurer, an assistant treasurer, or a designated depositary
of the United States, in the name and to the credit of such court:
Provided, That nothing herein shall be construed to
prevent
Page 184 U. S. 686
the delivery of any such money upon security, according to
agreement of parties, under the direction of the court."
"§ 996. No money deposited as aforesaid shall be withdrawn
except by order of the judge or judges of said courts respectively,
in term or in vacation, to be signed by such judge or judges, and
to be entered and certified of record by
the clerk, and
every such order shall state the cause in or on account of which it
is drawn."
"§ 5504. Every
clerk or other officer of a court of the
United States who fails forthwith to deposit any money belonging in
the registry of the court, or hereafter paid into court
or
received by the officers thereof, with the Treasurer [and]
assistant treasurer, or [of] a designated depositary of the United
States, in the name and to the credit of such court, or who retains
or converts to his own use or to the use of another any such money,
is guilty of embezzlement, and shall be punished by fine not less
than five hundred dollars, and not more than the amount embezzled,
or by imprisonment not less than one year, nor more than ten years,
or by both such fine and imprisonment; but nothing herein shall be
held to prevent the delivery of any such money upon security,
according to agreement, of parties under the direction of the
court."
"§ 5505. Every person who knowingly receives,
from a
clerk or other officer of a court of the United States, any
money belonging in the registry of such court as a deposit, loan,
or otherwise, is guilty of embezzlement, and shall be punished as
prescribed in the preceding section."
The statutory provisions to which we have referred, taken in
connection with section 828 of the Revised Statutes, giving
commissions to clerks for
receiving, keeping, and paying
out money in pursuance of any statute or order of court, show the
relation in which clerks of district and circuit courts have always
stood to moneys paid into court in pending causes. They manifestly
proceed on the ground that money paid into court, under its
sanction, may be received by a clerk, his duty upon receiving it
being forthwith to deposit the amount with the Treasurer, assistant
treasurer, or designated depositary of the United States, in the
name and to the credit of the court.
Page 184 U. S. 687
As soon as he receives the money be becomes responsible for it
under his bond, and that responsibility does not cease until he
deposits it as required by law. If after receiving the money he
appropriates it to his own use, or, which is the same thing, if he
deposits it in bank to his individual credit, he becomes liable on
his bond for the amount so misappropriated.
3. But it is said that, the bond in suit having been given to
the United States, it must be deemed an instrument for the sole
benefit of the government, and therefore no suit can be maintained
on it for the benefit of an individual suitor, although such suitor
may have been damaged by the failure of the clerk to discharge his
duty. This results, it is supposed, from the fact that there is no
statute expressly authorizing such a suit. If this position be well
taken, it would follow that the bonds required to be given by
clerks of the federal courts are not in any case for the protection
of private suitors. We are of opinion that Congress never intended
that any such condition of things should exist, but intended that
the bond of a clerk should be for the protection of all suitors,
public and private, and to that end authorized his bond to be
increased to forty thousand dollars. It is impossible to suppose
that, when requiring a clerk to give bond to the United States
"faithfully to discharge the duties of his office, and seasonably
to record the decrees, judgments, and determinations of the court,"
Congress had in mind the interests of the United States alone, and
purposely refrained from making any provision whatever for the
security of private suitors in the federal courts. Such a
conclusion would be inconsistent with the practice of a century,
and would greatly surprise the profession. As may well have been
anticipated when those courts were first established, the great
mass of litigation in the district and circuit courts of the United
States has always been between individuals, and consequently the
words above quoted, it must be assumed, had reference to individual
suitors as well as to the United States. In our opinion, the bond
of the clerk is for the benefit of every suitor injured by the
failure of that officer faithfully to discharge his duties or
seasonably to record the decrees, judgments, and determinations of
the court. It must have been so understood
Page 184 U. S. 688
when the courts of the United States were established and
provision made for the appointment of clerks who should be entitled
to receive the moneys of suitors when paid into court under its
sanction or pursuant to any statute.
A well considered case upon this general subject is that of
McDonald v. Atkins, 13 Neb. 568. That was an action on a
clerk's bond to recover the amount received by him from a sheriff
who had collected it on an execution. The point was made that the
clerk was not authorized by statute to accept payment of a
judgment, and so the court of original jurisdiction held in that
case. The supreme court of the state said:
"No one can doubt, we think, that this ruling was in direct
conflict with the general understanding of the legal profession of
this state as to the duty of court clerks in the receipt and
disbursement of money paid upon judgments, from the first
organization of our judicial system, through all its changes, down
to the present time. Indeed, we doubt exceedingly that anyone,
especially a practicing lawyer, has ever supposed that, upon the
rendition of a money judgment, the defendant could not prevent a
further accumulation of costs an interest, and have a satisfaction
legally entered of record, by at once paying to the clerk of the
court the amount which it calls for. If he could not -- if clerks
are really without authority to receive money on judgments in their
custody -- then to whom, in the absence of the plaintiff and his
attorney, could payment be legally made? . . . While it is true
that we have no statute which in express terms declares that the
clerks of the several courts shall accept payment of judgments in
their custody, it is very evident that the legislature contemplated
and intended that they should do so. . . . And, even in the absence
of such provision, can it be doubted that a party against whom a
money judgment is sought by action may, upon being summoned, pay
the amount demanded 'into court,' and thereby prevent the making of
any further costs? But how is it to be effected? In the case of
inferior courts -- those not of record, and unprovided with clerks
-- the payment can, of course, only be made to the judge or
magistrate in person; but in courts of record, where all the steps
taken in the progress of the case, from the commencement to
Page 184 U. S. 689
the satisfaction of final judgment, are recorded and preserved,
and where a clerk for the performance of this duty is specially
provided, it is otherwise. In these courts, payments of money are
never made to the judge, but the uniform practice in this state has
always been to make them to his clerk, to whose custody and care
the files, records, and whatsoever else relates to cases in court
are confided. And this practice, so universal, although not
positively directed by any act of the legislature, conflicts with
none, and, as we have shown, is recognized by and in perfect
harmony with several."
These observations are strikingly applicable in the present
case.
Two cases often cited in support of the contrary view are
Commonwealth v. Hatch, 5 Mass.191, and
Crocker v.
Fales, 13 Mass. 260. These cases will be found upon
examination to rest upon grounds not applicable here.
Commonwealth v. Hatch was a suit upon a bond given by
an inspector of beef for the faithful performance of his duties.
The suit was brought in the name of the commonwealth for the
benefit of one alleged to have been injured by the unfaithfulness
of the inspector in his office. It was held that the action could
not be sustained, the decision being placed, in part, upon the
ground that it appeared "by the statute directing the bond, and by
the bond, that it was given for the
sole use of the
commonwealth." Surely it cannot be said that it appears by the
statutes and by the bond in the present case that it was given for
the sole use of the United States.
Crocker v. Fales was an action upon a bond of a clerk
in the penalty of $1,000, the obligee being a county treasurer and
the action being in his name for the use of one claiming to be
injured by his neglect to pay certain moneys that came to his
hands. The court held that the action could not be maintained,
assigning as reasons for that conclusion that there was "nothing in
the act" under which the bond was taken showing "a design to
protect individual sufferers against the negligence of the clerk to
pay over moneys which may come into his hands;" that the penalty --
between fifty and three hundred pounds -- was discretionary with
the court, "the largest of these sums being wholly inadequate if it
was intended
Page 184 U. S. 690
to cover all possible delinquencies of a clerk," that the
damages recovered by one plaintiff "might consume the whole
penalty, and the public be left without any of the security which
was intended for the preservation of the records," and that, in
addition,
"the statute makes such an appropriation of the sum which may be
recovered by the treasurer on a suit as is
wholly inconsistent
with the supposition that an individual has an interest in the
bond."
Of course these things cannot be predicated of the statutory
provisions relating to the bonds of clerks of federal courts, and
therefore the case cited is not in point here.
The suggestion that the amount of the bond was insufficient to
protect both the United States and private suitors is not
controlling, for, by the Act of March 3, 1863, 12 Stat. 768, c. 93,
reproduced in section 795 of the Revised Statutes, the court could
fix the amount of the bond, and require a new one whenever it
deemed proper, and by the Act of February 22, 1875, 18 Stat. 333,
c. 95, the Attorney General could require a bond for as much as
forty thousand dollars.
4. A further contention is that, even if the bond was for the
protection of individual litigants, it could not be put in suit by
a private person, unless with the consent of the United States
expressed in an act of Congress.
It is supposed that the case of
Corporation of Washington v.
Young, 10 Wheat. 406,
23 U. S. 409,
is authority for this position. That was an action brought in the
name of the Corporation of Washington for the use of one McCue and
others to recover from a manager of a lottery scheme the prize
drawn by the purchasers of a certain ticket. The lottery was drawn
in pursuance of an ordinance of the corporation, and the bond of
the manager, in the penalty of ten thousand dollars, was
conditioned "truly and impartially to execute the duty and
authority vested in him by the ordinance." The suit was brought in
the name of the corporation without its previous assent. Upon
examination of the record in that case, it will be found that the
lottery was drawn under an Act of Congress approved May 4, 1812, c.
75, amending the charter of the City of Washington, and which gave
the Corporation of Washington power
"to authorize
Page 184 U. S. 691
the drawing of lotteries for effecting any important [public]
improvement in the city which the ordinary funds or revenue thereof
will not accomplish; provided, that the amount to be raised in each
year shall not exceed the sum of ten thousand dollars, and provided
also that the object for which the money is intended to be raised
shall be first submitted to the President of the United States, and
shall be approved of by him."
Act of May 4, 1812, 2 Stat. 721, 726, § 6. Chief Justice
Marshall, speaking for the Court, said:
"They [the proprietors of the ticket] had undoubtedly 'a right
to apply to the corporation to direct the suit, and the corporation
could not, consistently with their duty, have refused such
application,' if the purpose of the bond was to secure the
fortunate adventurers in the lottery, not to protect the
corporation itself. But the propriety of bringing such suit was a
subject on which the obligees had themselves a right to judge. If
the proprietors of one prize ticket had an interest in this bond,
the proprietors of every other prize ticket had the same interest,
and it could not be in the power of the first bold adventurer who
should seize and sue upon it to appropriate it to his own use and
to force the obligees to appear in court as plaintiffs against
their own will. No person who is not the proprietor of an
obligation can have a legal right to put it in suit unless such
right be given by the legislature, and no person can be authorized
to use the name of another without his assent given in fact
or
by legal intendment."
That case undoubtedly is authority for the proposition that,
generally speaking, an obligation taken under legislative sanction
cannot, in the absence of a statute so providing, be put in suit in
the name of the obligee, the proprietor of the obligation, without
his consent. But it also sustains the proposition that consent may
under some circumstances be assumed to have been given -- that is,
may arise by legal intendment. In the case just cited, it was
deemed plain from the ordinance of the corporation that the bond
was taken, primarily at least, for its protection, and not for the
benefit of ticket holders. The object for which the corporation was
empowered to establish lotteries was in its nature temporary and
local -- namely, to aid in
Page 184 U. S. 692
making important public improvements. It was to secure the
accomplishment of that object that the managers were required to
execute bond. It was not unreasonable to suppose that, in taking
such a bond, the corporation had in mind to protect itself in
making the public improvements which it was authorized to
undertake. In the present case, courts of the United States were
established in order that its jurisdiction might be invoked by all
entitled to do so, and the requirement that the clerk should
execute a bond for the faithful discharge of his duties and for the
seasonable recording of the judgments, decrees, and determinations
of the court -- no distinction being made between public and
private suitors -- was an assurance to all suitors that, within the
limit of the penalty of any bond taken from him by the government,
their rights would be protected against any act or omission on his
part resulting to their injury. By the terms of the statute, a
clerk's bond remained in the custody or subject to the order of the
court. In our opinion, Congress intended that the required bond
should protect private suitors as well as the United States, and
therefore, no statute forbidding it, a private suitor may bring an
action thereon for his benefit in the name of the obligee, the
United States. Such must be held to be the legal intendment of
existing statutory provisions. The United States, or rather the
court which had custody of the bond, is to be regarded as a trustee
for any party injured by a breach of its conditions.
Murfree, in his Treatise on Official Bonds says:
"§ 323. It is usually provided in statutes authorizing official
bonds to be required of state, county, or municipal officers, that
suits may be brought upon them in the name of the official obligee
'upon the relation' or 'to the use' of the party injured by the
breach of the bond or interested in its enforcement. Whenever,
however, this express provision is omitted in the statute itself,
the deficiency is supplied by the construction given to such
statutes by the courts whenever a proper case for such a ruling is
presented. In a Maryland case (1858),
State use of Baltimore v.
Norwood, 12 Md. 177, 194, the court held that it was not
necessary for a plaintiff, before instituting a suit upon an
official bond payable to the state, to obtain the state's
permission to do so, and this
Page 184 U. S. 693
although there was in the statute which prescribed the bond no
specific provision for making the bond payable to the state, or for
giving the party interested the right to sue upon it. The court
adds, however, that"
"there is no doubt that it is incumbent on the party suing on
the bond to show that he has an interest in it before he could
recover in a regular trial prosecuted to verdict."
"The rationale of official bonds is well expressed by the court
in this case:"
"The laws which provide for the execution of bonds similar to
the one before us do not require them for the purpose of protecting
the rights of the state alone. They are also designed to secure the
faithful performance of official duties, in the discharge of which
individuals and corporations have a deep interest, and therefore
they should have the privilege of suing [on] such bonds for
injuries sustained by them, through the negligence and malconduct
of the officers."
The same author:
"Many bonds of a strictly official character are executed by
persons in places of public trust, prescribed by statute, and made
payable to the 'state,' 'people,' or 'commonwealth,' or else to the
governor, president, or other chief officer, which are designed not
only to secure public interests, but to redress wrongs to
individuals. Actions on such bonds must, of course, be brought in
the name of the obligee, whether the object of the suit be to
enforce the rights of the state or to protect private interests. In
the latter case, it is usual to bring the suit as by the obligee,
'at the relation' or 'for the use' of the real party in
interest."
Stress is laid upon the fact that, in the case of a marshal of
the United States, the statute expressly gives a right of action
upon his bond to anyone injured by his neglect of duty, the suit to
be in the name of the party injured and for his sole use. Rev.Stat.
§ 784; 2 Stat. 372, 374, c. 21. A similar provision is made in the
case of consular officers who are required to give bond for the
faithful performance of their duties, such suit to be in the name
of the United States for the use of the person injured. Rev.Stat. §
1735. These provisions in relation to marshals and consular
officers undoubtedly furnish some ground for the contention that
Congress, having made no such express provision in the case of the
bonds of
Page 184 U. S. 694
clerks, did not intend that private suits should be maintained
upon their bonds. We are of opinion that this argument, although
not without force, ought not to prevail against the legal
intendment of the statutory provisions relating to clerks, who hold
a peculiar relation to the courts appointing them, as well as to
the public.
As the clerk had the right to receive the money in question; as
he failed, to the injury of the suitor from whom he received it,
with the sanction of the court in a pending cause, to deposit it as
required by law, and appropriated it to his own use, and as his
bond was for the protection of private suitors as well as for the
government, there is no sound reason why the plaintiff could not
enforce his rights by a suit in the name of the United States for
his benefit.
Perceiving no error in the record, the judgment is
Affirmed.