F. and B. were sureties in a bond for $30,000 given to the
United States as sureties for one Rector, described in the bond as
"Surveyor of the Public Lands in the States of Illinois and
Missouri and the Territory of Arkansas." Upon looking into all the
laws on this subject, it can hardly be doubted that this officer
was intended to be included in the provisions of the Act of
Congress of May 3, 1822, requiring security of the Surveyor
General. Literally, there was at that time provision made under the
laws for only one Surveyor General, but it is abundantly evident
that the officer who gave this bond was intended to be included in
the provisions of that act under the description of a Surveyor
General. The indiscriminate use of this appellation in the previous
and subsequent legislation of Congress on this subject will lead to
this conclusion.
The surveyors of public lands are disbursing officers under the
provisions of the act of Congress.
The defendants in the court below pleaded performance, and the
plaintiffs alleged as the breach that at the time of the execution
of the bond there were in the hands of Rector, as surveyor, to be
applied and disbursed by him in the discharge of the duties of his
office, for the use and benefit of the United States, diverse sums
of money, amounting, &c., and that the said Rector had not
applied or disbursed the same or any part thereof for the use and
benefit of the United States as in the execution of the duties of
his office he ought to have done. The jury found for the plaintiff
and assessed the damages for the breach of the condition at
$40,000, and the judgment was entered
"quod recuperet,"
the damages, not the debt. This judgment is clearly erroneous.
It would seem that in adopting this form of rendering the
judgment, the court below has been misled by the application of the
26th section of the act of 1789 to this subject. That section, if
it sanctions such a judgment al all, is expressly confined to three
cases -- default, confession or demurrer.
The plaintiffs in error are sureties in an official bond, and it
is perfectly clear as to them, a judgment cannot be rendered beyond
the penalty, to be discharged on payment of what is due, which of
course can only be where it is less than the penalty. The statute
expressly requires that the surveyors of the public lands shall
give bond for the faithful disbursement of public money, and in
this bond the words which relate to disbursement are omitted, and
the only words inserted are "that he shall faithfully discharge the
duties of his office." The Court feels no difficulty in maintaining
that where the conditions are cumulative, the omission of one
condition cannot invalidate the bond so far as the other operates
to bind the party.
Rector was commissioned Surveyor of the Public Lands on 13 June,
1823, and the bond bears date 17 August, 1823. Between 3 March and
4 June in the same year, there had been paid to Rector from the
Treasury the sum of money found by the jury, and thus it was paid
to him before the date of his commission and before the date of the
bond.
By the court:
"For any sum paid to Rector prior to the execution of the
bond,
Page 30 U. S. 374
there is but one ground on which the sureties could be held
answerable to the United States, and that is on the assumption that
he still held the money in bank or otherwise. If still in his
hands, he was up to that time bailee to the government; but upon
the contrary hypothesis, he had become a debtor or defaulter to the
government, and his offense was already consummated. If intended to
cover past dereliction, the bond should have been made
retrospective in its language. The sureties have not undertaken
against his past misconduct. They ought therefore to have been let
in to proof of the actual state of facts so vitally important to
their defense, and whether paid away in violation of the trust
reposed in him; if paid away, he no longer stood in the relation of
bailee."
Such a case was not one to which the act applies which requires
the submission of accounts to the Treasury before discounts can be
given in evidence, since this defense goes not to discharge a
liability incurred, but to negative its ever existing.
This was an action of debt brought by the United States in the
District Court of the United States for the District of Missouri
against Bernard G. Farrar, Joseph C. Brown, and others upon a bond
dated 7 August, 1823, in the penal sum of $30,000, conditioned
that
"Whereas the President of the United States had, pursuant to
law, appointed William Rector Surveyor of the Public Lands in the
State of Illinois and Missouri and in the Territory of Arkansas,
now, therefore, if the said William Rector shall faithfully execute
and discharge the duties of his office, then the obligation to be
void."
The defendants pleaded that William Rector had performed his
duties as surveyor.
The breach assigned in the replication is that at the time of
the execution of the bond,
"there were in the hands of the said William Rector as such
surveyor, to be by him, in the discharge of the duties of his
office, applied and disbursed for the use and benefit of the
plaintiffs, divers sums of money amounting in the whole to a large
sum of money, to-wit: the sum of $44,780.38, and that the said
William Rector hath not applied and disbursed the same or any part
thereof for the use and benefit of the plaintiffs, as in the
execution of the duties of his said office he ought to have
done."
Upon this plea issue was taken, and under the instructions of
the court the jury found the issue for the plaintiffs below,
and
Page 30 U. S. 375
assessed the damages at $40,456.20, and judgment was rendered
for that sum in damages.
At the trial, the plaintiffs produced and read in evidence a
duly certified copy of this bond, and a transcript from the books
and proceedings of the Treasury, certified by the register of the
Treasury and authenticated under the seal of the department. The
certificate so annexed, was in the following words:
"I, Joseph Nourse, Register of the Treasury of the United
States, do certify that the foregoing report and statement, No. 47,
798, of the account of William Rector, late Surveyor of Public Land
in the States of Illinois and Missouri and the Territory of
Arkansas, are true copies of the originals on file in this
office."
The defendants objected to the reading of this evidence, and the
court overruled the objection. The defendants then offered
competent evidence to prove that Rector, before the execution of
the bond declared on, had expended for his own private use all the
money charged to have been received by him from the United States,
which proof the court refused to admit. The defendants then offered
to prove that Rector, before the execution of the bond, had
expended $32,000 of the balance appearing against him in the
account given in evidence in legal payments to deputy surveyors,
but the court refused to admit the evidence because no claim for
credits on account of said payments, or any of them, had been made
at the Treasury Department.
They also gave in evidence a letter from John McLean,
Commissioner of the Land Office, to William Rector, dated 13 June,
1823, as follows:
"Enclosed you have a commission from the President of the United
States appointing you, by and with the advice and consent of the
Senate, Surveyor of the Public Lands in the States of Illinois and
Missouri and in the Territory of Arkansas, for the term of four
years from the date thereof, 20 February, 1823. You will please to
qualify yourself by taking an oath to support the Constitution of
the United States and by entering into bond with one or more good
securities in the sum of $30,000, the securities to be approved
Page 30 U. S. 376
by the United States district judge or attorney, whose
certificate must be endorsed on the bond, a form of which is
enclosed. The bond and oath to be sent to this office."
As has been stated, the bond sued on is dated on 7 August, 1823,
and it appeared by Rector's account with the government, exhibited
in the bill of exceptions, that the money now sought to be
recovered of the sureties was entrusted to Rector at various times
from 3 March to 4 June, inclusive, of the same year.
The defendants below prayed the court to instruct the jury
that
"If it finds from the evidence that William Rector, at the time
the money with which he is charged was received, had not received a
commission as Surveyor of the Public Lands in the State of Illinois
and Missouri and the Territory of Arkansas, the present defendants
are not liable to this action upon the breach assigned,"
which instruction the court refused to give, but instructed the
jury
"That all moneys which had been received by the said William
Rector, as Surveyor of the Public Lands in the State of Illinois
and Missouri and Territory of Arkansas prior to the execution of
the writing obligatory declared on, and which had not been duly
disbursed by him in the discharge of the duties of his office or
paid back to the government would be considered in his hands in the
sense of the issue joined between the parties in this case, and
that whether the moneys so received were received between the date
of his appointment and the time when the commission came to his
hands or after the last mentioned time was immaterial, and whether
he had given bond and taken the oath of office before the receipt
of the money as aforesaid was equally immaterial."
And further instructed the jury
"That the transcript aforesaid might be received by them as
evidence that the money charged in the account had been received by
him as surveyor as aforesaid, and was evidence that there were
moneys in his hands at the date of the said writing obligatory, as
stated in the account contained in the said transcript, to be
disbursed in the due discharge and execution of the duties of his
office or accounted for to the government as surveyor as aforesaid,
subject, however, to be impeached by evidence on the part of the
defendants. That the letters testamentary and of administration in
evidence in the present
Page 30 U. S. 377
case on the part of the defendants entitle them to the benefit
of a credit for the amount of the items which appears by the
account to have been suspended for want of proof of the
executorship of William Rector and the want of proof that letters
of administration had been granted to Thomas C. Rector against the
balance appearing on the accounts."
The defendants then moved the court to instruct the jury "that
upon the whole evidence, the plaintiff could not recover," which
instruction was refused.
The defendants, by their counsel, moved the court for a new
trial, for a repleader in arrest of judgment, and for judgment for
the defendants
non obstante veredicto, all which motions
were overruled. They then prosecuted this writ of error.
Page 30 U. S. 385
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This was a suit instituted below against the plaintiffs here to
recover a debt of $30,000, for which they had become bound to the
United States as sureties for one Rector, who is described in the
bond as "Surveyor of the Public Lands in the State of Illinois and
Missouri and the Territory of Arkansas." The plea was performance,
and the breach alleged in the replication is in these words:
"That at the time of the execution of the bond, there were in
the hands of the said William Rector, as such surveyor, to be by
him, in the discharge of the duties of his office, applied and
disbursed for the use and benefit of the plaintiffs, divers sums of
money amounting, &c., and that the said William Rector hath not
applied and disbursed the same money or any part thereof for the
use and benefit of the plaintiffs, as in the execution of the
duties of his said office he ought to have done."
On this plea issue was taken, and at the trial a bill of
exceptions was taken to sundry instructions of the court, given or
refused, which will be considered in their proper place. Two
questions of a more general character must first be disposed
of.
The first arises on the form of the judgment, the jury having
found for the plaintiffs below on the breach assigned, assessed the
damages for breach of the condition at $41,000, and the judgment
rendered is
"quod recuperet," the damages, not the debt
aforesaid. The parties, plaintiffs in error, are the sureties, and
it is perfectly clear that as to them a judgment cannot be rendered
beyond the penalty, to be discharged on payment of what is actually
due, which of course can only be where it is a sum less than the
penalty. It is proposed on behalf of the United States to release
the surplus, and such is their right, but this still leaves the
form of the judgment uncured and unamended.
It would seem that in adopting this form of rendering judgment,
the court below has been misled by the application of the 26th
section of the act of 1789 to this subject. If so, it is a clear
misapprehension, since that section, if it sanctions such
Page 30 U. S. 386
a judgment at all, is expressly confined to three cases:
default, confession, or demurrer, with neither of which is the
present case affected.
There is no doubt, then, that the judgment must be reversed on
this ground; but as other points as well as those made in the bill
of exceptions might again embarrass the cause in the court below,
and would most probably bring it back again here, it becomes
necessary to consider those points.
The second preliminary point alluded to is whether the bond was
not taken without law or contrary to law, so as to be illegal and
invalid. This turns on the official character assigned to Rector in
the bond, or on that in which in fact he is to be regarded in law.
He is described as "surveyor of public land" in certain districts,
not as Surveyor General. And such in fact was his literal
character, for the office of Surveyor General still exists,
nominally unique, although a large proportion of his powers and
duties have been transferred to the surveyors of public lands in
certain districts, subsequently detached from the region over which
his powers were originally extended.
In deciding on this point, three questions are to be considered
-- first, whether he was bound to give bond at all; secondly,
whether the words of the condition embrace the duties of a
disbursing officer; and thirdly, whether those duties were incident
to his office.
Upon looking through all the laws passed upon this subject, it
can hardly be doubted that this officer was intended to be included
in the provision of the Act of May 7, 1822, requiring security of
the Surveyor General. Literally, there was at that time provision
made under the laws for only one surveyor general, but it is
abundantly evident that the officer who gave this bond was intended
to be included in the provisions of that act, under the description
of a surveyor general. The indiscriminate use of this appellation
in the previous and subsequent legislation of Congress on the
subject will lead us to this conclusion.
Until the passing of the Act of February 28, 1806, all the
surveying for the United States was carried on under the provisions
of the Act of May 18, 1796, as amended by the Act of May 10, 1800,
and under the control and superintendence of the Surveyor General.
In the year 1806, after the
Page 30 U. S. 387
purchase of Louisiana, the powers of that officer were extended
to the country newly acquired, and he was enjoined to appoint a
sufficient number of skillful surveyors as deputies, one of whom,
to be appointed with the approbation of the Secretary of the
Treasury, was to assume the character of principal deputy and to
exercise over the co-deputies the general power vested in and
exercised previously by the Surveyor General. The subordinate
character of all these officers was distinctly marked by that act,
and yet we find that in the Act of March 3, 1807, in the second
section of the act, the epithet of Surveyor General is expressly
applied to that individual of them who should have been employed in
surveying the public lands south of the Tennessee, 4 L.U.S. 111.
Yet at a subsequent day, to-wit, March 3, 1815, 4 L.U.S. 834, we
find the same officer designated generally as a surveyor of that
district of country. So also when the Act of April 29, 1816, was
passed, which abolished the appointment of these deputies and
conferred the appointment of their present substitutes upon the
President, the latter are simply designated as a surveyor, and not
Surveyor General. Yet when the Act of May 7, 1822, is passed,
requiring bond to be given by these officers, it is expressed
altogether in the plural number, as recognizing the existence of
more than one surveyor general.
There were then no other officers in existence besides the
actual Surveyor General who could come within the literal
enactments of that statute, unless we include a surveyor appointed
under the provisions of the Act of April 29, 1816. That is the
present obligor. And if further confirmation be required to
establish the necessary extension of the provisions of that law to
the present cause, we have it in the Act of May 26, 1824, in the
second section of that act, the language of which expressly
recognizes the existence of more than one surveyor general. It is
clear then that from the time that the appointment of deputies by
the Surveyor General was superseded by the appointment of surveyors
by the Treasury Department, the independent character in which
those officers then acted identified them with the Surveyor
General, so far as to have led to the use of language by Congress,
adapted to confounding them with the Surveyor General.
We therefore have no doubt that they were included in the
Page 30 U. S. 388
provisions of the act which required bonds to be taken on their
accession to office. Nor do we think that there is any more doubt
that the law contemplates them as disbursing officers. It is
express in requiring them to give bond for the faithful
disbursement of public money, and
cui bono do this if they
were not regarded as disbursing officers?
But the words of the statute which relate to disbursements are
omitted from the condition of this bond, and the only words
inserted are "that he shall faithfully discharge the duties of his
office." The Court feels no difficulty in maintaining that where
the conditions are cumulative, the omission of one condition cannot
invalidate bond so far as the other operates to bind the party. But
the question is one of much more difficulty whether, where the law
is express that the condition shall be both for the faithful
disbursement of money and the general discharge of duty, and the
latter only is inserted, the former may still be held to be
comprised within the general words of the latter. But for the
language used in the statute, the Court has no doubt that the case
would have been open to proof that the disbursement of money was
one of the known and habitual duties of the office, and included in
the general words; but whether the omission of the express words
which imposed this liability does not preclude a resort to their
restoration incidentally by proof is a question on which the Court
has felt much difficulty, and which it will not now decide.
The next questions to be considered are those presented by the
bill of exceptions, and of these that which goes to the sufficiency
of the certificate has already been disposed of in the case of
Smith v. United States, ante, 30 U. S. 292, in
which the same form of certificate was held to be a substantial
compliance with the law under which it was resorted to as
proof.
The remaining questions grow out of this state of facts. Rector
was appointed surveyor, or at least commissioned as such, on 13
June, 1823, and this bond bears date 7 August, 1823. Between 3
March and 4 June in the same year, there had been paid to him from
the Treasury the sum of money found by the jury. So that it was
paid to him before the commission and before the bond in proof.
Page 30 U. S. 389
On this state of facts, the bill of exceptions asserts three
grounds of defense.
1. That the sureties could not be made liable at all for the
money so paid.
2. That if at all, they ought to be let into proof that Rector
had appropriated the money to his own use before the date of the
bond. Or,
3. That he had paid it, or enough of it to cover the penalty of
the bond to the use of the United States, before they became bound
for him.
On these points we feel no difficulty in affirming that for any
sums paid to Rector prior to the execution of the bond, there is
but one ground on which the sureties could be held answerable to
the United States, and that is on the assumption that he still held
the money in bank or otherwise. If still in his hands, he was, up
to that time, bailee to the government; but upon the contrary
hypothesis, he had become a debtor or defaulter to the government,
and his offense was already consummated. If intended to cover past
dereliction, the bond should have been made retrospective in its
language. The sureties have not undertaken against his past
misconduct. They ought therefore to have been let into proof of the
actual state of facts so vitally important to their defense, and
whether paid away in violation or in execution of the trust reposed
in him, if paid away, he no longer stood in the relation of bailee.
It was not then a case to which that act applies which requires the
submission of accounts to the Treasury before discounts can be
given in evidence, since this defense goes not to discharge a
liability incurred, but to negative its ever existing.
In giving instructions to the jury on these points, therefore,
the court erred, as well as in refusing to let the defendants into
proof, as prayed, since such testimony presents a direct negative
to the breach alleged, which is that the obligor then had the money
in his hands.
Judgment reversed and venire facias do novo
awarded.
