1. The United States, in asserting its rights, is not barred by
the laches of its officers or agents.
2. Duties imposed upon an officer different in their nature from
those which he was required to perform at the time his official
bond was executed do not render it void as an undertaking for the
faithful performance of those which he at first assumed. It will
still remain a binding obligation for what it was originally given
to secure.
3. The twenty-first section of the Act of Congress of March 2,
1799, 1 Stat. 844, makes it the duty of collectors of customs "to
pay to the order of the officer, who shall be authorized to direct
the payment thereof, the whole of the moneys which they may
respectively receive" by virtue of that act.
Held that
payments and disbursements of moneys received in his official
capacity, if made by direction of the Secretary of the Treasury are
within the range of the duty of a collector of customs.
This is an action by the United States against Bessie Elgee
Gaussen, executrix of John K. Elgee, deceased, who was one of the
sureties on the official bond of Thomas Barrett, Collector of the
Customs for the District of New Orleans, in the State of Louisiana.
It was before this Court at its October Term, 1873, when the
judgment of the circuit court was reversed and the case remanded
for a new trial.
United States v.
Gaussen, 19 Wall. 198. The mandate was filed in the
court below Jan. 27, 1875. The bond sued on bears date July 6,
1844, and is conditioned as follows:
"Now, therefore, if the said Thomas Barrett has truly and
faithfully executed and discharged, and shall continue truly and
faithfully to execute and discharge all the duties of the said
office according to law, then the above obligation
Page 97 U. S. 585
to be void and of none effect; otherwise, it shall abide and
remain in full force and virtue."
The United States claimed that the various adjustments of
Barrett's accounts by the accounting officers of the Treasury, from
July 25, 1844, to Oct. 12, 1845, showed a balance due by him of
$41,376.64, and that his failure to account for and pay over that
amount, received by him in his official capacity, constituted a
breach of the condition of his bond. The defendant answered:
1. By a general denial.
2.
"That if the bond sued on was ever executed, delivered, and took
effect, which is not admitted, then defendant avers that said bond,
after its execution, was rendered void and null, so far as said
decedent was concerned, for this, that subsequent to its date and
during the period of the term of office of Thomas Barrett, as
collector of the port of New Orleans, the United States imposed on
and exacted of him the performance of duties and the assumption of
responsibilities in regard to the receipt, custody, and
disbursement of the moneys received in his said capacity as
collector aforesaid, different and variant from those duties and
responsibilities in that regard legally incumbent upon him as
collector aforesaid at the date of said bond, under the law then
existing and in force; that during his said term of office, said
Barrett was dispensed by the United States from his duty and
obligation of paying certain moneys, received by him in his said
capacity, to the United States, in the mode required by law, and in
lieu thereof was required by the United States to expend and
disburse, and under its orders he did actually expend and disburse,
during his said official term, a large portion of said moneys by
payments made to collectors and surveyors of other collection
districts, and to various other officers of the government; that
said Barrett was required by the United States to expend and
disburse, and he did, in accordance with its orders, expend and
disburse during his said official term a large portion of said
moneys for the construction of the new marine hospital and for the
maintenance and supply of existing hospitals and lighthouses, and
of vessels of the revenue and naval service, and for other purposes
entirely beyond the scope of his duties as collector aforesaid, and
as fixed and defined by law;
Page 97 U. S. 586
that said Barrett was required by the United States, in his said
capacity as collector aforesaid, to receive and disburse, and did
actually during his said official term receive and disburse under
its said requirements large sums of money which he was not required
by law to receive and disburse in his said capacity as collector --
all of which appears by the account filed by the plaintiff herein.
And defendant charges that the duties and risks and
responsibilities of said Barrett as collector aforesaid, without
the consent of said decedent, were varied, enlarged, and changed by
the United States subsequent to the date of said bond and during
his official term, whereby the liability of said decedent as surety
on said bond, if ever it existed, was avoided and discharged."
3.
"That the said Thomas Barrett departed this life about the year
1846 in New Orleans, having a large real and personal estate,
consisting in property and assets more than sufficient to pay the
amount of plaintiff's demand; that if the United States had a valid
claim against said Barrett, it had the right of priority of payment
on such property and assets which it neglected to enforce, and
lost; that upon said bond are signatures which purport to be those
of Francois Delery, Sylvain Peyroux, Lucien Hermann, M. B.
Cantrelle; that all of said parties are dead; that each died
leaving a large and valuable estate, more than enough to pay the
amount claimed in this suit; that if the United States had a valid
claim against said Barrett and said Francois Delery, Sylvain
Peyroux, Lucien Hermann, and M. B. Cantrelle, it had the right of
priority of payment of said demand out of each and all of said
estates, which it neglected to enforce and lost, whereby the
liability of said J. K. Elgee, if it ever existed, was
discharged."
The court, on motion of the United States, ordered that the part
of said answer which is included within brackets be struck out on
the ground that if true, it was insufficient, as pleaded, to bar
the action.
The defendant requested the court to give the following
instructions in relation to matters which the evidence tended to
establish:
1.
"That if the jury find from the evidence that the Secretary of
the Treasury required the said Barrett, while collector,
Page 97 U. S. 587
to use the moneys received by him as collector, in the
redemption of treasury notes of the United States, that such
requirement was an important and material change of the duties,
functions, and employment of the said Barrett as collector, as
regulated by law, and, whenever made, discharged the sureties on
his official bond from all liability for his subsequent official
conduct."
2.
"That while Barrett, the principal in the bond sued on, held the
office of collector, no law imposed on him the duty of making
disbursements for any marine hospital or for the lighthouses or
revenue cutters, and that such duties and disbursements were
extra-official as to the office of collector, and that the sureties
on the bond sued on are not responsible for any fault, neglect, or
misconduct of the said Barrett in respect to such extra-official
disbursements, and if the jury find from the evidence that said
Barrett, while he held said office, was employed by the superior
officers of the department to make disbursements for the marine
hospital, lighthouses, and revenue cutters, and that the said
Barrett was furnished money directly from the Treasury of the
United States or from other sources than the proper receipts and
collections of the office of collector, that in order to charge the
defendant with the money thus furnished, or any part thereof, it is
incumbent on the plaintiff to prove that the money thus furnished,
or such part thereof, was necessary to cover the disbursements
proper to the office of collector, or was furnished for that
purpose."
3.
"That if the jury find from the evidence that the Secretary of
the Treasury caused to be remitted to Thomas Barrett, while
collector, money out of the Treasury of the United States and
employed him as disbursing officer of the government in defraying
the expenses of the lighthouse service, of the erection of the
marine hospital at New Orleans, and in other matters not connected
with his official duties as collector, as regulated by law, and
extra-official as respects the office of collector, and in the
accounts between the government and the said Barrett, filed with
the petition, there are mixed and blended together on the debit
side of the account against said Barrett the moneys received by him
officially for duties on imports and from other sources from which
he was by law
Page 97 U. S. 588
authorized to collect, and moneys remitted to him directly out
of the Treasury of the United States; [that, in order to recover
the balance brought down in the present action, it is incumbent on
the government to prove to the satisfaction of the jury that the
said balance brought down resulted from the failure of the said
Barrett to account for the funds which came into his hands, as
collector, and within the scope of his official duties in that
office, and his failure to perform his duty in respect to such
funds, and not from his failure to account for funds received from
the Treasury for extra-official purposes, and his failure to
perform his duty in respect to such funds.]"
These instructions the court refused to give except so much of
the last as is embraced within brackets. The defendant
excepted.
There was a verdict for the plaintiff for $36,815.86, with
interest thereon from Oct. 12, 1845, and judgment having been
rendered thereon, the defendant sued out this writ, and here
assigns error as follows:
The court below erred:
1. In striking out parts of the answer of the defendant.
2. In refusing the defendant's first request.
3. In refusing the defendant's second request.
4. In refusing the defendant's third request.
Page 97 U. S. 589
MR. JUSTICE STRONG delivered the opinion of the Court.
This suit was founded upon the bond of a collector of customs,
the condition of which is that he had truly executed and
discharged, and should continue to execute and discharge, all the
duties of the office of collector according to law; and the breach
assigned was that he had failed to account for and pay over the
money received by him in his official capacity as collector.
Page 97 U. S. 590
The defendant's testator was a surety in the bond; but that is
an immaterial fact in the case, for nothing is plainer than the
rule that a surety in a bond is liable to the same extent to which
his principal is liable, by force of the bond.
A general denial having been interposed to the plaintiff's
petition, the defendant added two special pleas, which, upon
motion, the circuit court ordered to be stricken out, and this
order is now assigned as error. An examination of the pleas
stricken out, however, satisfies us that they were plainly
impertinent. They aver nothing that constitutes either a total or
even a partial defense. The second alleges, in effect, laches on
the part of the government, in failing to assert its claim against
other sureties in the bond, whereby, it is averred, the liability
of defendant's testator, if it ever existed, was discharged. But
laches of the officers or agents of the government is confessedly
no bar to the assertion of its rights. This is admitted by the
plaintiff in error, and it has not been contended in argument, as
it could not have been successfully, that delay or neglect in
prosecuting its claims against the co-sureties of the defendant's
testator is any bar to this suit.
The first special plea,
supra� p.
97 U. S. 585,
requires a more minute examination. It was in effect that the
obligation of the bond had been discharged not directly, but
because the principal obligor had been required to perform and had
performed duties additional to those which pertained by law to his
office when the bond was made. It does not aver that the additional
duties changed the character of the office or increased the
responsibility of the collector for the money received by him as
collector of customs. How, then, the requisition of duties not
inconsistent with accounting for and paying over money received by
him as collector of customs can operate to release his bond is
quite incomprehensible. If it be conceded, as it may be, that the
addition of duties different in their nature from those which
belonged to the office when the official bond was given will not
impose upon an obligor in the bond, as such, additional
responsibilities, it is undoubtedly true that such an addition of
new duties does not render void the bond of the officer as a
security for the performance of the duties at first assumed. It
will still
Page 97 U. S. 591
remain a security for what it was originally given to secure.
And it is noticeable that most of the allegations in the plea of
extra-official expenditures and disbursements required of the
collector (for example, payments to other collectors and surveyors
of other collection districts, payments to other government
officers, payments for the construction of a new marine hospital,
and for the maintenance and supply of existing hospitals and
lighthouses and vessels of the revenue and naval service) are
averments of conduct and requirements which the collector was under
legal obligations to observe and obey when the bond in suit was
made. The Act of Congress of March 2, 1799, c. 2, sec. 21, 1 Stat.
644, made it the duty of collectors to "pay to the order of the
officer who shall be authorized to direct the payment thereof, the
whole of the moneys which they may respectively receive" by virtue
of the act. All payments and disbursements of money received by the
collector in his official capacity, if made as charged in the plea,
by direction of the government, were therefore strictly within the
range of his official duty.
The remaining reason given by the plea in support of the
averment that the bond had been avoided is that the collector was,
during his official term, required to receive and disburse large
sums of money which the law did not require him to receive and
disburse as collector, as appeared by the official accounts filed
by the plaintiff in the suit. But how that fact, if it was a fact,
could operate even in favor of a surety to release him from the
obligation of the official bond we find ourselves unable to
perceive. Such an effect has not been claimed in the argument for
the plaintiff in error. It is doubtless true that neither the
surety nor his principal is responsible, by virtue of the bond, for
money which the collector received, not as collector -- money which
his office did not require him to receive or disburse; but this
suit was brought to enforce no such responsibility. The surety may
not be liable for a failure of his principal to account for such
money; yet if he is not, it does not follow that he is not bound by
his bond to respond for his principal's default to account for
money received in his official character. Requiring a person who is
a collector of customs to receive a sum of money and apply it in
discharge of
Page 97 U. S. 592
some liability of the government entirely outside of his
ordinary employment, for example, to pay debentures, may impose a
new duty upon him, but it leaves his office, as collector,
untouched and his accountability in it unimpaired. This is quite
consistent with the doctrine which we admit, that if, after an
official bond has been signed, the nature of the office be changed
by law, the bond ceases to be obligatory. In such a case, the
office is no longer the same, within the meaning of the bond.
Converse v. United
States, 21 How. 463.
It follows from these considerations that neither of the special
pleas set up any thing which amounted to a defense to the action.
The facts averred exhibited no discharge of the defendant's
testator from the obligation of the bond, nor did they tend to show
that he was not responsible for the collector's neglect to account
for and pay over whatever money he had received as collector. There
was no error, therefore, in striking out the pleas as impertinent
and in refusing to receive evidence to support them.
Holding this opinion, we are not called upon to inquire whether
the money received and disbursed by the collector, "as appearing by
the official accounts filed by the plaintiff in the suit," was all
money which it was his duty to receive and disburse as collector.
And we are not to be understood as assenting to the claim that some
part of it was not. On this subject,
See
Broome v. The United
States, 15 How. 143.
The next assignment of error requiring attention is that the
court refused to charge the jury, if they found from the evidence
the Secretary of the Treasury required the collector to use the
money received by him in the redemption of Treasury notes, that
such requirement was an important and material change of the
duties, functions, and employment of the collector as required by
law, and discharged the sureties in his official bond from all
liability for his subsequent official misconduct.
Enough has already been said to show that such a charge should
not have been given. By the act of 1799, to which we have referred,
it was made the official duty of the collector to pay the public
money in his hands to the order, or according to the direction of
the officer authorized to direct the payment thereof. Payment of
Treasury notes, therefore, in pursuance
Page 97 U. S. 593
of the order of the Secretary, was directly in the line of the
collector's duty as such an officer.
The same remarks are applicable to the refusal of the court to
affirm the second point proposed by the defendant as instruction to
the jury. It would have been error had such instruction been given.
While it may be true that no law specifically imposed upon the
collector the duty of making disbursements for any marine hospital
or for the lighthouses or revenue cutters, it is not true that such
duties "were extra-official as to the office of collector" if the
payments were ordered by the Secretary of the Treasury, for the
collector was bound to pay to his order, as we have seen. Nor could
the court have affirmed that money furnished to the collector from
the Treasury of the United States, or from sources other than the
proper receipts and collections, must be shown by the plaintiff to
have been necessary to cover the disbursements proper to the office
of the collector, or that it was furnished for that purpose. As the
law was when the bond was executed, the government was authorized
to furnish money to collectors for certain purposes, on their
requisition. But apart from this, when the proposition was
submitted to the court, the Treasury transcript was in evidence. By
law, it made out a
prima facie case, and the burden of
proof, instead of being upon the plaintiff, was on the defendant to
disprove it. Besides, it was proven by the transcript, and by the
accounts furnished to the department by the collector, that the
money he had received from other sources than collection of customs
had all been expended in the payment of debentures with the
sanction of the Treasury Department. To this there was no
contradictory evidence. The point proposed by the defendant was
therefore wholly inapplicable to the case.
The remaining assignment is that the court refused to affirm the
third point in the words in which it was proposed. But the court
did affirm it in substance, and even more broadly than it was
presented. The court charged the jury
"That, in order to recover the balance brought down in the
present action, it is incumbent on the government to prove to the
satisfaction of the jury that the said balance brought down
resulted from the failure of the said Barrett (the collector)
to
Page 97 U. S. 594
account for the funds which came into his hands as collector,
and within the scope of his official duties in that office, and his
failure to perform his duty in respect to such funds, and not from
his failure to account for funds received from the Treasury for the
extrajudicial purposes, and his failure to perform his duty in
respect to such funds."
This was an unqualified direction, not dependent upon what the
jury might believe to be proved by the evidence. It was therefore
more than the defendant asked.
The case requires nothing further. The plaintiff has recovered a
judgment for the sum which the principal obligor in the bond
admitted to be due from him as collector. The judgment includes
nothing except an unpaid balance of duties collected, and we
discover no error in the trial.
Judgment affirmed.
