Where an action was brought by the United States upon the
official bond of a receiver of public money, a plea that the United
States had accepted another bond from the receiver was bad. The new
bond could be no satisfaction for the damages that had accrued for
the breach of the condition of the old one.
Pleas also were bad alleging that the receiver had made returns
to the Treasury Department admitting that he had received money
which the pleas asserted that he never had received. They were bad
because they addressed themselves entirely to the evidence, which,
it was supposed, the United States would bring forward upon the
trial.
Besides, these pleas were bad because the sureties in the bond
were bound to protect the United States from the commission of the
very fraud which they attempted to set up as a defense.
The case of the
United States v.
Boyd, 5 How. 29, examined.
Another plea taking issue upon the breach should not have been
demurred to. The demurrer being general as to all the pleas, and
bad as to this one, judgment was properly given against the
plaintiffs in the court below.
By the laws of Mississippi, where a joint action is brought upon
a bond or note, the case must be finally disposed of in the court
below, with respect to all the parties upon the record, before it
is carried up to the appellate court, otherwise it is error.
Where this error occurs, the practice of this Court is to
dismiss the case for want of jurisdiction, and remand it to the
court below to be proceeded in and finally disposed of.
The United States sued out process against James A. Girault,
William M. Gwin, Hay Battle Harrison, and Alexander J. McMurtry,
and declared for a debt of $100,000 by bond, bearing date 8 July,
1838, executed by the defendants to the United States, with
condition, reciting that the defendant Girault had been appointed
by the President of the United States, by commission bearing date 2
June, 1838, receiver of public money for the District of lands
subject to sale
Page 52 U. S. 23
at Chocchuma, in the State of Mississippi, that, "if the said
Girault shall faithfully execute and discharge the duties of his
office, then the obligation to be void," and assigned for
breach
"that on the 2d day of June, 1840, the said Girault, as receiver
of public money as aforesaid, had received a large amount of public
money, to-wit, the sum of $8,952.37, which said sum of money, he,
the said James A. Girault, has hitherto wholly neglected and
refused, and still neglects and refuses, to pay to the United
States, contrary to the form and effect of the said writing
obligatory; and of the condition thereof by reason of which,"
&c.
To this the sureties, Gwin, Harrison, and McMurtry (pleaded by
leave of the court first had) four several pleas:
1. That after the making of the bond declared on, and after the
said 2 June, 1840, mentioned in the assignment of breach, and
before the commencement of suit, to-wit, on 25 September, 1840, the
said J. A. Girault and McRae Bartlett, George K. Girault, Wilson
and Blocker made their act and deed to the plaintiffs in the penal
sum of $100,000, reciting the appointment of said James A. Girault
as Receiver of Public Money at Chocchuma by commission bearing date
2 June, 1838, with condition
"that if the said James A. Girault had truly and faithfully
executed and discharged, and should truly and faithfully continue
to execute and discharge, all the duties of said office according
to the laws of the United States,"
&c., which bond and condition the plaintiffs did then and
there
"receive and accept of and from said James A. Girault, _____, in
full lieu, discharge, and satisfaction of the said writing
obligatory in the plaintiffs' declaration mentioned, and this the
said defendants are ready to verify; wherefore they pray judgment
if . . ."
&c.
2. That on 2 June, 1840, and on several days before,
"the said James A. Girault issued receipts as receiver of money,
paid for certain lands therein specified, and so returned, at the
times aforesaid, to the Treasury Department of the United States,
to the amount of ten thousand dollars, and of which the amount in
the declaration mentioned is part and parcel, and these defendants
say that neither the said ten thousand dollars nor any part thereof
was ever paid to or collected by him, the said James A. Girault,
which these defendants are ready to verify and prove, wherefore
they pray judgment if the said plaintiffs shall have their action
against them."
3. The third plea says
"That said J. A. Girault caused to be entered for his own use
several parcels of land, amounting to eight thousand acres, and
gave and issued receipts for money paid therefor on 2 June, 1840,
and on divers other days
Page 52 U. S. 24
before that time, and returned an account to the Treasury
Department of the United States in said receipts specified, to the
amount of ten thousand dollars, of which amount the sum mentioned
in plaintiffs' declaration is part and parcel. . . . And the said
defendants aver that neither the said moneys nor any part thereof
was ever paid or deposited in said office by the said Girault or
anyone for him, and this the defendants are ready to verify,
whereof they pray judgment."
4. The fourth plea alleges that the plaintiffs ought not to have
their action, because the defendants say
"That no public moneys of the United States came to the hands of
the said James A. Girault, as such receiver, after the execution of
said bond, nor were there any such public moneys for the payment of
which the defendants were chargeable by virtue of the said bond
received by him prior to the execution of the same remaining in the
hands of the said receiver in his official capacity, at the time of
the execution of said bond or at any time thereafter which had not
been paid or accounted for according to law, before the
commencement of this suit, which the defendants are ready to
verify; wherefore they pray judgment,"
&c.
To these pleas the attorney for the United States demurred.
The court sustained the demurrer to the first plea, overruled it
as to the second, third, and fourth, and adjudged that the
plaintiffs be barred from having their aforesaid action.
To review this judgment, the United States sued out a writ of
error and brought the case up to this Court.
Page 52 U. S. 28
MR. JUSTICE NELSON delivered the opinion of the Court.
This action was brought on the official bond of Girault, a
receiver of the public money, against him and his sureties. The
bond is dated t8 July, 1838, and conditioned that he shall
faithfully execute and discharge the duties of the office of
receiver.
The breach assigned is that on 2 June, 1840, the said Girault
had received a large amount of the public moneys, to-wit, the sum
of $8,952.37, which he had neglected and refused to pay over to the
government.
All the defendants were personally served with process.
The sureties appeared and pleaded --
1. That after the making of the bond in the declaration
mentioned, and before the commencement of the suit, to-wit, on 25
September, 1840, a certain other official bond was given by Girault
and others to the plaintiffs, describing it, which they accepted in
full discharge and satisfaction of the first one.
2. That on 2 June, 1840, and on divers days before that day, the
said Girault gave receipts as receiver for moneys
Page 52 U. S. 29
paid on the entry of certain lands therein specified, and
returned the same to the Treasury Department, to the amount of ten
thousand dollars, and of which the amount in the declaration
mentioned was part and parcel. And that neither the ten thousand
dollars nor any part thereof was paid to or received by him, the
said Girault.
3. The same as the second, except that the receipts given were
for several parcels of land entered by Girault for his own use.
4. That no public moneys of the United States came to the hands
of Girault, as receiver, after the execution of the bond, nor were
there any received by him, for which the defendants were
accountable by virtue of said bond, prior to the execution of the
same, remaining in his hands as such receiver at the time of the
execution, or at any time afterwards, which had not been paid over
and accounted for according to law before the commencement of the
suit.
To these several pleas the plaintiffs put in a general demurrer,
to which there was a joinder.
The court gave judgment for the plaintiffs on the first plea,
and for the defendants on the second, third, and fourth. Upon which
the plaintiffs bring error.
The first plea is not before us, as judgment was rendered for
the plaintiffs. It is undoubtedly bad, as the new bond could be no
satisfaction for the damages that had accrued for the breach of the
condition of the old one.
Lovelace v. Cocket, Hobart, 68;
Bac.Abr., tit. Pleas 2, p. 289.
The second and third pleas are also bad, and the court below
erred in giving judgment for the defendants upon them. They are
pleas not to the declaration or breach charged, but to the evidence
upon which it is assumed the plaintiffs will rely at the trial, to
maintain the action. The breach is general, that the defendant
Girault has in his possession eight thousand nine hundred and
fifty-two dollars and thirty-seven cents of the public moneys which
he neglects and refuses to pay over.
The defendants answer that the evidence which the receiver has
furnished the plaintiffs of this indebtedness is false and
fabricated and that no part of the sum in question was ever
collected or received by him, thereby placing the defense upon the
assumption of a fact or facts which may or may not be material in
the case, and upon which the plaintiffs may or may not rely in
making out the indebtedness. A defendant has no right to anticipate
or undertake to control by his pleadings the nature or character of
the proof upon which his adversary may think proper to rely in
support of his cause of action, nor to ground his defense upon any
such proofs. He must deal with
Page 52 U. S. 30
the facts as they are set forth in the declaration, and not with
the supposed or presumed evidence of them.
If the defendants are right in the principle sought to be
maintained in their second and third pleas, a denial of any public
moneys being in the hands of the receiver for which they were
liable within the condition of their bond would have answered all
their purposes. For if the plaintiffs possess no other evidence of
their liability than that of the fabricated receipts, and the
sureties are not responsible for the moneys thus acknowledged, nor
estopped from controverting them, a plea to the effect above stated
would have enabled them to present that defense.
The principle, however, upon which these pleas are founded is as
indefensible as the rule of pleading adopted for the purpose of
setting it up.
The condition of the bond is that Girault shall faithfully
execute and discharge the duties of his office as a receiver of the
public moneys. The defendants have bound themselves for the
fulfillment of these duties, and are, of course, responsible for
the very fraud committed upon the government by that officer which
is sought to be set up here in bar of the action on the bond.
As Girault would not be allowed to set up his own fraud for the
purpose of disproving the evidence of his indebtedness, we do not
see but that upon the same principle, they should be estopped from
setting it up as committed by one for whose fidelity they have
become responsible.
This is not like the case of
United
States v. Boyd, 5 How. 29. There, the receipts
which had been returned to the Treasury Department, upon which the
indebtedness was founded and which had been given on entries of the
public lands without exacting the money, in fraud of the
government, were all given before the execution of the official
bond upon which the suit was brought.
The sureties were not, therefore, responsible for the fraud, and
it was these transactions on the part of the receiver, which had
transpired anterior to the time when the sureties became answerable
for the faithful execution of his duties, in respect to which it
was held that they could not be estopped by his returns to the
government. No part of them fell within the time covered by the
official bond.
The fourth plea affords a full and complete answer to the breach
assigned in the declaration, and should not have been demurred to.
As it takes issue upon the breach, it should have concluded to the
country, but this defect is available only by a special
demurrer.
Page 52 U. S. 31
As the demurrer put in is general to the four several pleas, if
any one of them constituted a good bar to the action, the demurrer
is bad. On this ground, the judgment was properly given against the
plaintiffs in the court below.
They should have asked leave to withdraw the demurrer as to the
fourth plea, and have taken issue upon it, instead of allowing the
judgment to stand and bringing it to this Court on error.
Indeed, when these pleas were put in, the plaintiffs, in order
that the case might be disembarrassed of any technical objections
or difficulties on account of the pleadings, should have amended
their declaration by assigning additional breaches covering the
malfeasance in office set up in the second and third pleas. This
would have met the grounds of the defense raised by them and have
presented the issues appropriately upon the condition of the bond
whether or not the receiver had faithfully executed the duties of
his office.
The defendant Girault, it appears, was personally served with
process, but did not appear. The plaintiffs have not proceeded to
judgment nor discontinued their proceedings as to him. As the case
stands, therefore, there is a joint suit against four defendants on
the bond, a judgment in favor of three, and the suit as to the
fourth undisposed of.
According to the practice in Mississippi founded upon a statute
of the state, in the case of a joint action on a bond or note,
separate judgments may be taken against the several defendants,
whether by default or on verdict, and the plaintiff may take
judgment against some of the defendants, and discontinue as to
others. But it is there deemed error, for which the judgment will
be reversed, if final judgment is entered up by the plaintiff
before the case is finally disposed of in respect to all the
parties on the record. 2 How. (Miss.) 870; 4
id. 377; 6
id. 517; 7
id. 304.
In the case in 6 Howard above cited, the plaintiffs brought a
suit against two defendants on a sealed note. The writ was returned
served as to one of them, and
non est as to the other. The
declaration was filed against both, and the one personally served
appeared and defended, and a verdict was found against him on which
judgment was entered, the case remaining undisposed of as to the
other defendant. On appeal the court reversed the judgment,
remarking that the case should have been disposed of as to all the
parties; there is no judgment of discontinuance or dismissal as to
one of the defendants.
The same point was ruled in the case in 2 Howard above referred
to, and also in that in 7 Howard. In the last case, it
Page 52 U. S. 32
is said that it is irregular to enter a final judgment against
part of the defendants without disposing of the cause against the
others; that it was regular to take judgment by default against
those who did not plead; but the judgment in the case should not
have been finally entered until the cause was ready for final
disposition as to all.
The practice in this Court in case the judgment or decree is not
final is to dismiss the writ of error or appeal for want of
jurisdiction and remand it to the court below to be further
proceeded in.
4 U. S. 4 Dall. 22;
16 U. S. 3 Wheat.
433;
17 U. S. 4 Wheat.
75;
47 U. S. 6 How.
201,
47 U. S. 206.
This is also the rule of the King's Bench in England.
Metcalfe's Case, 11 Co. 38. It is there laid down in the
second resolution that by the words in the writ
"si judicium
inde redditum sit" &c. are intended not only a judgment in
the chief matters in controversy, but also in the whole of them, so
that the suit may be at an end. The reason given is that if the
record should be removed before the whole matter is determined in
the court below, there would be a failure of justice, as the King's
Bench cannot proceed upon the matters not determined, and upon
which no judgment is given, and the whole record must be in the
Common Pleas or King's Bench. It is entire, and cannot be in both
courts at the same time.
The writ is conditional, and does not authorize the court below
to send up the case unless all the matters between all the parties
to the record have been finally disposed of. The case is not to be
sent up in fragments, by a succession of writs of error.
Peet
v. McGraw, 21 Wend. 667.
It is supposed that inasmuch as judgment is allowed to be
entered separately against two or more defendants sued jointly upon
a bond or note according to the statute of Mississippi, the
severance of the cause of action is complete, and that anyone
defendant against whom judgment may be thus entered can bring error
although the case has not been disposed of as to the other
defendants. And for a like reason, when a judgment is rendered in
favor of one defendant against the plaintiff, the latter may bring
error before the suit has been disposed of in respect to the
others.
But we have seen that the practice is otherwise under this
statute, and that final judgment cannot be properly entered against
any of the parties until the whole case is disposed of, and that
any neglect in the observance of the rule exposes the judgment to a
reversal on error in the appellate court.
According to the practice of this Court, the judgment cannot be
reversed on account of the error, but the case must be dismissed
for want of jurisdiction and remanded to the court below to be
proceeded in and finally disposed of.
Page 52 U. S. 33
As the case must come before that court for further proceedings,
it may, in its discretion, on a proper application, relieve the
plaintiffs from the embarrassments in which the justice of it seems
to have been involved on account of the unskillfulness of the
pleader by opening the judgment on the demurrer and permitting them
to amend the pleadings. It is apparent that judgment has been
rendered against them without at all involving the merits of the
case.
The writ of error is
Dismissed, and the cause remanded to the court
below.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that this
writ of error be and the same is hereby dismissed, and that this
cause be and the same is hereby remanded to the said district court
with directions to proceed therein in conformity to the opinion of
this Court.
