1. A surety in the bond of a public officer is entitled to
credit for all payments made by his principal during the time he
remained in office, and is chargeable only with the moneys received
by him during the same time.
2. The naked facts that an officer, having public money in his
hands, drew on the government while he was in office for a further
sum to pay certain debts and expenses, which draft was met after he
went out of office by a requisition on the Treasury in favor of the
payee, and that the officer in the meantime paid the debts and
expenses mentioned by him, will not authorize a charge against the
surety of the sum drawn for nor deprive him of his right to a
credit for the debts and expenses so paid.
3. In an action against the surety in such a case, it is
necessary for the United States to prove that the money was
actually paid out of the Treasury and came to the hands of the
officer during his term of service, and those facts will not be
inferred from the draft, the requisition, and the Treasury
warrant.
4. A transfer of moneys by the government to an agent of the
officer does not affect the liability of the surety as a transfer
to the officer himself.
5. The fidelity or responsibility of the agent through whom the
government sees fit to transfer public money is not within the
obligation assumed by the surety.
6. Where the evidence shows a state of facts from which the
inference is not deducible that the officer received the money
sought to be charged against his surety, it is error to leave the
cause to the jury upon the hypothesis that he did receive it.
The United States brought an action of debt in the circuit court
against Joseph Bryan, one of the sureties in the official bond of
Samuel D. King, Surveyor General of California. It appeared that
King was commissioned by the President on the 29th of March, 1851,
and executed his bond with Bryan and others as sureties on the same
day. On the 19th of March,
Page 66 U. S. 141
1853, John C. Hays was commissioned as his successor. On the
30th of June, 1853, at San Francisco, Hays gave bond and took the
oath. On the 31st of May, 1853, a month before Hays took possession
of the office, King wrote to the Commissioner of the Land Office an
official letter in which he admitted that the balance against him
on the surveying account, on the 1st of April, was after deducting
what was due him on the salary and contingent account $13,933 32.
But he alleged that payments were made on it to the amount of over
$11,000, and that disbursements would be made
during that
quarter requiring more than the amount in his hands. He stated
that by the end of the quarter, there would be needed on salary
account $10,000, on contingent account $6,500, and for other
purposes $3,500; in all, $20,000. He then added that
"the full amounts as above being needed by the time this reaches
your office, and long before a remittance could be received,
I
have been compelled to draw upon you at one day's sight for the
said sum of $20,000 in the form enclosed, which please
honor."
On the same day, he wrote again to the commissioner:
"To meet balances due me on settlement of my salary and
contingent accounts of the first quarter of 1853, and expenditures
under both of those heads, and other expenses
during the
present quarter, I have to request that, one day after sight,
a warrant for the sum of $20,000, out of the undermentioned
appropriations, may be issued in favor of Charles D. Meigs, cashier
of the American Exchange Bank, City of New York, and charged to me
as follows, per advice of this date."
Then follows a statement showing that the amount referred to is
to pay the balance of the first quarter, and to pay expenditures of
the second quarter, ending on the 30th of June, 1853.
On the 4th of July, 1853, in accordance with the request
contained in these letters, a requisition was made by the Secretary
of the Interior upon the Treasury for three warrants on account of
Samuel D. King, Surveyor General, for $3,500, $6,500, and $10,000,
on which requisition corresponding Treasury warrants and drafts
were issued, payable to the cashier of the American Exchange Bank
of New York. The accounting officers of the Treasury charged him
with the whole amount of
Page 66 U. S. 142
them. Between the 31st of May and the 30th of June, he disbursed
the sum of $11,295, for which he received credit in his accounts.
Allowing him these credits and charging him with the $20,000 for
which he drew in favor of Meigs, the balance is against him, as it
also is if the credits and the charge be both stricken out. But
allowing the credits without the charge, the balance would be in
his favor. In the circuit court, the defendant insisted that he was
not responsible as surety for the $20,000 paid on the requisition
in favor of Meigs, dated the 4th of July, 1853, because that was
after his principal in the bond had gone out of office, and that he
was entitled to credit for all payments made previous to that time.
For the United States it was claimed that King had raised the money
before he went out of office by getting his drafts on the
government cashed, and had applied the money, or part of it, thus
raised to the payment of the debts due by the government, and it
was unjust to the public that his sureties should be permitted to
set off his payments out of that money against the balance
previously due from him while they repudiated the charge. The court
instructed the jury as follows:
"If the jury shall find from the evidence that Samuel D. King,
as Surveyor General of California, prior to the 30th day of June,
1853, paid certain amounts due to himself and other creditors of
the government upon the accounts and salaries, and office rents and
contingencies, given in evidence in this cause, out of moneys
raised by him upon orders or drafts drawn upon the government, and
by him made known to the government to have been drawn for the
accounts to which the said payments were in fact applied, and that
said drafts were paid, and said amounts thereby reimbursed to him
by the government after the 30th day of June, 1853, then it is not
competent for the defendant in this action to apply the amounts of
those accounts thus by him paid, and extinguished, as a set-off
against the amount due by him to the government upon the survey
account prior to the 30th of June, 1853, as given in evidence in
this cause."
The defendants took a bill of exceptions. The verdict was in
favor of the United States for $10,531 43, on which the
Page 66 U. S. 143
court gave judgment, and thereupon the defendant below took this
writ of error.
Page 66 U. S. 145
MR. JUSTICE NELSON.
The suit was brought by the United States upon the official bond
of Samuel D. King, Surveyor General of the public lands of the
State of California, against Joseph Bryan, one of his sureties, for
moneys received by the principal in the course of the execution of
the duties of his office, and which he has not accounted for. The
bond was executed on the 29th of March, 1851.
The plaintiff gave in evidence several Treasury transcripts, by
which it appeared that, on 30 June, 1853, when King's term of
office expired, which was the end of the second quarter of that
year, there was a balance due him to an amount exceeding three
thousand dollars, although at the end of the first quarter there
was a balance against him of some $14,000. But there appeared also
on the debit side, charged to him, three Treasury warrants, each
dated July 9, 1853 -- one of $10,000, another of $6,500, and the
third $3,500, making an aggregate of $20,000, and which sum, if
properly chargeable against the sureties, would leave a balance due
the plaintiff of $10,531 43. As these warrants bore date on their
face, after the expiration of the term of office, which was, on the
30th June, 1853, unexplained, they were of course not so
chargeable.
The plaintiff assumed the burden of this explanation, and for
that purpose gave in evidence a requisition by King upon
Page 66 U. S. 146
the Commissioner of the Land Office dated San Francisco, May 30,
1853, giving, in the communication, a general estimate of the sums
of money that would be required to meet his disbursements for
moneys due in the first quarter of the year 1853 and to become due
in the second quarter. These estimates correspond with the sums for
which the three Treasury warrants of the 9th July were drawn. A
letter also accompanied the estimates and requisition, explaining
somewhat at large the grounds of the estimates, and the necessity
for the amount required. They were received by the commissioner in
this city on the 25th June following. The requisition of King
contained a request that the drafts of the Treasurer for the
advance of the moneys called for should be made in favor of Charles
D. Meigs, cashier of the American Exchange Bank in the City of New
York.
It was in pursuance of this requisition and letter accompanying
the same that the three Treasury warrants of the 9th July were
drawn for the $20,000; and on the 11th of the month the Treasurer
drew at sight upon the Assistant Treasurer in the City of New York
three bills in favor of Charles D. Meigs, corresponding in amount
with the Treasury warrants.
The plaintiff also proved that the Commissioner of the Land
Office, on the 30th June, had given notice to Meigs that he had on
that day made a requisition in his favor at the request of King for
the $20,000. This referred to the requisition of the Commissioner
on the Treasury Department for the advance of the money, and in
pursuance of which, doubtless, the Treasury warrants and drafts in
favor of Meigs already referred to were afterwards drawn. It will
be observed that the Treasury warrants were made out nine days, and
the drafts drawn in favor of Meigs eleven, after the office of King
had expired.
Upon this state of facts, the court below instructed the jury if
they should find from the evidence that King, the Surveyor General,
prior to the 30th June, 1853, paid certain amounts due to himself
and other creditors of the government upon the accounts and
salaries, office rents and contingencies, given in evidence, out of
moneys raised by him upon orders or drafts drawn upon the
government, and by him made known to the
Page 66 U. S. 147
government to have been drawn for the amounts to which the said
payments were in fact applied, and that said drafts were paid and
said amounts reimbursed to him by the government after the 30th
June, 1853, then it is not competent for the defendant to apply the
amount of those accounts thus by him paid and extinguished as a
set-off against the amount due by him to the government upon the
survey account prior to June 30, 1853, as given in evidence.
In order to understand these instructions, it is necessary to
refer to some facts already stated -- namely that according to the
Treasury transcripts given in evidence by the plaintiff containing
a statement of the accounts between King and the government, debit
and credit, down to the 30th June, 1853, when his office ceased, a
balance appeared in his favor of some $3,000; but a requisition had
been made by him on the 31st May, 1853, during his term of office,
on the Commissioner for the $20,000, and in pursuance of which the
three Treasury warrants were made and drafts drawn in favor of
Meigs, of New York, after the office had expired, and that, at the
end of the first quarter, the balance was against King.
Now in view of these facts, the instructions are, if the jury
find that King, prior to the 30th June, 1853, the period when his
office expired, paid the money for which credits were given in the
Treasury transcripts out of money raised by him upon orders of
drafts drawn upon the government and which were made known by him
to the government to have been so drawn, and that these drafts were
paid and the money disbursed by the government after the 30th of
June, 1853 -- that is, after his office expired -- then it was not
competent for the defendant, the surety, to apply the moneys thus
paid by King as a set-off against his indebtedness to the
government on the survey account prior to the 30th June, 1853,
referring, doubtless, to the balance due by him at the end of the
first quarter.
In other and shorter words, if King drew on the government
during his term of office and notified the government of the fact,
and raised money upon these drafts by which he obtained the credits
in the Treasury transcripts, and the government paid the drafts
even after King went out of office, then the
Page 66 U. S. 148
surety could not claim these credits, and would be liable for
all moneys in his hands at the expiration of his term not thus
applied.
The first observation we have to make upon these instructions is
that they were given to the jury upon a purely hypothetical case,
unsupported by any evidence to which it could be applied.
There is no evidence in the case to show out of what particular
moneys King paid the expenses of his office during the period
referred to and obtained the credits, or that he raised any money
for this purpose by means of drafts on the government, or that the
government paid any drafts drawn by him before or after the
expiration of his term of office. The only evidence relating to
this subject is the requisition of King upon the Commissioner of
the Land Office, already referred to, dated the 31st May, 1853, and
received the 25th June by the commissioner, five days before his
office expired, and the Treasury warrants of the 9th July, and
drafts in favor of Meigs of the 11th for the $20,000. These furnish
all the evidence of any drafts upon, or disbursements by, the
government in the case.
The next observation we have to make is that there is no
evidence in the case that the government has advanced any portion
of the $20,000 to King, either during his term of office or since.
It is true the Treasury warrants were made out and charged to him,
and drafts drawn in favor of Meigs by the Treasurer upon the
Assistant Treasurer in the City of New York for this amount on the
9th and 11th of July, 1853. But there is no evidence that these
drafts ever came to the hands of Meigs or that the Assistant
Treasurer was ever called on to pay or ever paid them. For aught
that appears, the money may still be in the Treasury. These are
facts which, if material to charge the surety, should have been
proved, and not left to presumption or conjecture, and even if we
were to presume all this and believe, without proof, that the
government transmitted the drafts to Meigs, and that he received
the moneys from the Assistant Treasurer, there is no evidence that
the money came to the hands of King. We are not prepared to
Page 66 U. S. 149
admit that the transfer of moneys by the government to the agent
of the officer is equivalent to a transfer to the office himself so
far as the liability of the surety is concerned. The fidelity or
responsibility of the agent through whom the government may see fit
to thus transfer the public money is not within the obligation
assumed by the surety in the official bond. He is responsible only
for all moneys which came into the hands of the officer while in
office and which he subsequently fails to account for and pay over.
12 Wheat.
25 U. S. 505.
The questions, therefore, put to the jury as to drafts drawn by
King upon the government, and of moneys having been raised upon
them during his term of office, out of which he had obtained the
credits given in the Treasury transcripts, and of the subsequent
payment of the drafts by the government, were entirely
hypothetical, unsupported by the evidence in the case, and, of
course, whichever way found, laid no foundation for the inference
stated in the instructions, that the surety could not claim these
credits, and would be liable for all moneys in the hands of the
officer at the expiration of his office not thus applied.
As the case has been very imperfectly tried and must be sent
down for another trial, we shall make no observations concerning it
in anticipation of the facts that may be proved on the part of the
government except to say that in order to charge the surety for the
default of the officer, it must appear from the evidence that the
public moneys in question came into his hands, either in point of
fact or in judgment of law, previous to the time when the term of
office expired.
Judgment reversed, venire de novo.
