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
Page 35 U. S. 348
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
Page 35 U. S. 349
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
Page 35 U. S. 359
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,
Page 35 U. S. 360
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.
