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mg certificate; but as no objection was made to the introduction of the title papers in the court below, on behalf of the United States, on the hearing; and as the cause has presented no difficulty on its merits, this preliminary point has been passed over, with this indication; so that in future, the objection may be taken below, should it be deemed desirable to present the question on part of the government, whether such authentication is sufficient to authorize the evidences of title to be read.

We order the decree of the Superior Court to be reversed, and that the petition be dismissed. 186*] *This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel; on consideration whereof, it is the opinion of this court that the grant or concession is void for the want of identity; that it appropriates no land; that the said petitioner has acquired no right or title to any specific land. Whereupon, it is now here decreed and ordered by this court that the decree of the said Superior Court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said Superior Court, with directions to enter a decree in conformity to the opinion of this court.

By the revised Code of Mississippi, 614, any number of breaches may be assigned; and when a demurrer shall be joined in any action, no defect in the pleadings shall be regarded by the court unless specially alleged as the causes of demurrer. A case having come to the Supreme Court, by writ of proceeding in that State govern the pleadings. The case having been brought up from the Circuit Court of Mississippi, on a writ of error, and the judgment of the Circuit Court, on the demurer, in favor of the defendant, and against the United States, having been reversed by the Supreme Court, the case will be in the Circuit Court as if the demurrer had been overruled; and will be subject to additional pleadings as an amendment of the present pleadings, according to the rules and practice of the Circuit Court, and on such terms as it may impose.

of error from the district of Mississippi, the modes

N error to the Circuit Court of the United States for the Southern District of Missis

sippi.

Gordon D. Boyd was duly appointed a receiver of public moneys for the district of lands subject to sale at Columbus, in the [*188 State of Mississippi, for the term of four years from the 27th day of December, 1836. On the 15th of June, 1837, he gave a bond in the penal sum of two hundred thousand dollars, jointly and severally with Samuel Rossdale and others, the defendants in error in the present suit. The condition of the bond was that, whereas the President of the United States had, pursuant to law, appointed him, the said Boyd, receiver as aforesaid, for the term of four years, from

187*] *THE UNITED STATES, Plaintiffs in the 27th of December, 1836, that therefore, "if

Error,

V.

GORDON D. BOYD et al., Defendants in Error. Action on official bond-liability of suretypractice.

The United States proceeded on the official bond of Boyd, a receiver of public moneys for the district of lands subject to sale at Columbus, Mississippi. Boyd had been appointed receiver for four years, from the 27th December, 1836; and the bond was for the faithful performance of the duties of his office, and was executed on the 15th of June, 1837. The breaches assigned by the United States were, 1st. That after the 27th day of December, 1836, Boyd received, in his official capacity, fifty-nine thousand six hundred and twenty two dollars, which he failed to pay over to the United States, as he was bound to do by law. That Boyd, on the 27th day of December, 1836, and at divers days between that and the 30th of September, 1837, received fifty-nine thousand six hundred and twenty-two dollars, as receiver, which sum remained in his hands on the 30th day of September, 1837; and that he failed to pay the same, pursuant to his instructions from the Secretary of the Treasury, and the duties of his office, etc.

2d.

The case of Farrar and Brown v. The United States, 5 Peters, 374, cited and affirmed. It matters not at what time the moneys had been received by the officer, if received after his appointment. They were held in trust for the United States, and so continued to be held at and after the date of the bond; and the sureties are liable to the United States.

The liability of a surety is not to extend, by implication, beyond the terms of his contract. This undertaking is to receive a strict interpretation, and not to extend beyond the fair scope of its

terms.

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As to liability on official bond, see note to 51 L.R.A. 222.

As to liability of sureties on bond of a peace officer for death of person due to the act or default of the principal or one of his sureties, see note to 11 L.R.A.(N.S、) 758.

the said Boyd shall faithfully execute and discharge the duties of his office, then the above obligation to be void, and of none effect, other

wise it shall abide and remain in full force and virtue."

At May Term, 1838, a suit was instituted on this bond by the United States in the Circuit Court for the Southern District of Mississippi against the obligors, being the present defendants in error, to recover the penalty thereof. The defendants craved oyer of the bond, and afterwards of the condition, and subsequently, pleaded that the plaintiffs ought not to maintain their action, because "the said Boyd did, from time to time, and all times after making of the said bond, and the condition thereof, well and truly observe, perform, fulfil, and keep the condition of said bond, by faithfully executing and discharging the duties of his office, according to the tenor and effect, true intent and meaning of the said condition."

At November Term, 1839, the United States filed their amended replication, in which they said that they ought not to be barred from maintaining their action, because the said Boyd had not performed the condition of the said bond, and two breaches thereof were assigned.

1st. That "the said Boyd, after the 27th of December, 1836, and while he was receiver, and as such receiver, received of the public moneys, large sums, viz., fifty-nine thousand six hundred and twenty-two dollars and sixty cents, which said sum he then and there wholly failed, neglected, and refused to pay over to the said plaintiffs, pursuant to his instruction from the Secretary of the Treasury, as he was bound to do by law, and the duty of his said office of receiver."

2d. That "the said Boyd, after the 27th of December, 1836, and on divers days and times, between that day and the 30th of Sep. [*189

tember, 1837, while he was receiver, and as chase money within thirty days to the Treas. such receiver, received divers sums of the pub-urer of the United States directly, or "to a perlic moneys, amounting in the whole to fifty-son appointed by the President to attend at the nine thousand six hundred and twenty-two dol-place of sale and receive it;" the residue was lars and sixty cents, and that the said sum remained in the hands of the said Boyd, as receiver, on the 30th of September, 1837; and the said Boyd then and there wholly failed, neglected, and refused to pay the same over to the United States, pursuant to his instructions from the Secretary of the Treasury, as he was bound to do by law, and the duty of his of

fice.

To this replication the defendants demurred, for the following causes:

1st. The first breach does not state the time at which Boyd, as receiver, received the said money after this appointment, whether before or after the date of the bond.

2d. The first breach does not state that Boyd neglected to pay over any moneys received by him, as received, after the date of the bond.

3d. The second breach does not state any time at which Boyd, as receiver, received the said money.

4th. The second breach does not state that Boyd, as receiver, neglected to pay over any moneys received by him, as receiver, after the date of the bond.

5th. That the replication is otherwise insuf

ficient.

The United States joined in the demurrer, and the same was sustained by the court, and judgment thereupon entered for the defendants. The United States prosecuted this writ of error.

The case was argued by Mr. Gilpin AttorneyGeneral, for the United States. Mr. Davis, in behalf of Mr. Cocke, submitted a printed argument for the defendants.

to be paid directly to the treasurer. On the 10th of May, 1800 (1 Story's Laws, 783), land offices were created at four places, Cincinnati, Chilicothe, Marietta, and Steubenville; and it was directed that a receiver of public moneys should be appointed at each of them, by the President, whose duties were to receive the purchase money from purchasers; give receipts therefor; transmit, at designated periods, accounts of the moneys received, to the Secretary of the Treasury; and "within three months transmit to the Treasurer of the United States the moneys by them received." By the same law, the Secretary of the Treasury was authorized to prescribe such further regulations as to the manner of keeping the books, and the accounts, as he might think proper. On the 25th of April, 1812 (2 Story's Laws, 1238), the general land office was established, and all the powers and duties of the Secretary of the Treasury, relative to the public lands, were devolved upon the commissioner; to whom, also, all returns from the land offices were directed to be made, and by whom all accounts from them were to be settled. On the 24th of April, 1820 (3 Story's Laws, 1774), the law was passed requiring the whole purchase money to be paid on the day of sale to the receiver, or to the Treasurer of the United States. On the 3d of March, 1833 (4 Story's Laws, [*191 2359), a law was passed which formed a certain portion of the lands in the State of Mississippi, purchased not long before from the Choctaws, into a land district called the Northeastern District; and the President was directed to establish a land office at some convenient place therein, which he might desig. nate; and to appoint a receiver of public moneys for that office, who was to give bond ac

For the United States, Mr. Gilpin contended that the breaches of the condition of the bond, by the principal obligor, are well and sufficient-cording to law, and who was to perform simily set forth in the replication, and that the demurrer ought not to have been sustained. Mr. Gilpin, Attorney-General, for the United States.

On the 27th of December, 1836, the defendant Boyd was appointed a receiver of public moneys at Columbus, in Mississippi, for four years. On the 15th of June, 1837, and while 190*] his term of office was unexpired, the bond on which the present suit was brought was given by him and the other defendants in error, in the penal sum of two hundred thousand dollars, with the condition that he "should faithfully discharge the duties of his office," of receiver of public moneys, and stating the term to be "four years from the 27th of December,

1836."

On the first establishment of the government in 1789, the general duty of "superintending the collection of the revenue," and of "executing such services relating to the sale of the public lands as might be required by law" (1 Story's Laws, 46), was devolved on the Secretary of the Treasury. The earliest general provision (1 Story's Laws, 42), regulating, especially, the payment of moneys on the purchase of public lands, was that of the 18th of May, 1796, and by that it was provided that the purchaser was to pay one half of the pur

lar duties, and be in all respects governed by the laws of the United States, providing for the sale of the public lands. This office was established at Columbus, and went into operation on the 1st of May, 1833. On the 4th of July, 1836 (4 Story's Laws, 499), the general land office was re-organized; and it was provided that the receivers should make to the Secretary of the Treasury monthly returns of the moneys received by them, and should pay over such money, pursuant to his instructions.

The various instructions that had been from time to time issued in regard to the various duties of the officers of the land office, were condensed, in the year 1831, into a circular issued by the Secretary of the Treasury; which, so far as it relates to the payment of public moneys collected by the receivers, is as follows (2 Birchard's Land Documents, 443): "When the public money in the hands of a receiver, at the end of any month, exceeds the sum of ten thousand dollars, it should be deposited without delay. But it must not be retained, under any circumstances, in contravention of the provisions of the Act of 10th May, 1800, which require that the moneys received by the receivers shall be transmitted within three months to the Treasurer of the United States, as they will thereby render themselves and their sureties

liable under their official bonds. It is essential that the public moneys in the possession of the receivers should be deposited at the above intervals." These instructions, which were issued by the Secretary of the Treasury, through the Commissioner of the General Land Office, have formed, ever since, the well known guide of receivers of public moneys throughout the United States.

It will thus be seen that, for a receiver of public moneys "faithfully to execute and discharge the duties of his office," he must pay over "the public money in his hands, exceed192*] ing ten thousand dollars, once a month," and deposit "all the public moneys in his possession" once in three months. It is not possible that the duties required for the faithful execution and discharge of an office can be more exactly defined.

On the 20th of September, 1837, the defendant Boyd resigned his office, having at that time in his hands, not paid over, or deposited, as required by the above regulation, the sum of fifty-nine thousand six hundred and twentytwo dollars and sixty cents, received during the term designated in the bond. This balance, though repeatedly called upon, he has ever since refused to pay over, or deposit; and at May Term, 1838, a suit was instituted against him and his sureties, on their official bond, to recover it. The defendants pleaded performance, and alleged that Boyd had at all times, after he making of the bond, faithfully executed and discharged the duties of his office. The United States, in an amended replication filed at November term, 1839, replied that he had not performed the condition of his bond, and assigned as breaches of it:

money received; all is to be paid over; if it was so received, as to have made it a breach of duty not to pay it over before the 15th of June, this does not make it less so, to continue to withhold it after that time. It is too plain for argument, that Boyd did not faithfully perform his duty, if he neglected to pay over these moneys, after the 15th of June, whenever they first came there.

If, then, this was a duty of the principal; if a neglect of it was a breach of the condition of the bond on his part; is there anything which exempts the sureties from liability on account of it? What are the sureties bound for? They are bound to answer for their principal performing every duty whatever, which belonged to his office, at the time they executed the bond. This was his chief and well-known duty. They knew he had been in office for five months; they knew he must have received public moneys; they knew that the bond they gave was dated in the middle of a quarter; they knew therefore that the public moneys, thus received, must be remaining in his hands undeposited. It was, therefore, a duty which when they signed the bond, they knew he had to perform. They could ascertain the amount of their liability at that time. They were not in any way taken by surprise. They executed the bond with a full knowledge that their principal was bound to pay over and deposit the moneys then in his hands. It is true that a surety may not be bound always to see new duties performed, which are imposed on their principal after the date of the bond; but these are not of that character. Let us suppose that this bond, executed on the 15th of June, had contained, in terms, this condition: "that the said Boyd shall faithfully perform his duty as a receiver, by paying over and depositing all public money now in his hands;" will it be conre-tended that the sureties would not then have been answerable? And is not this the case where such a condition is contained in substance, when there is a condition that he shall perform every duty, and this is a well-known and prescribed duty. The designation [*194 of a general duty, necessarily embraces the particular duty. It seems clear then that to pay over the moneys remaining in his hands when the bond was signed, was a duty of the principal, and one which the sureties knew he was bound to perform. They are therefore answerable for a breach of it.

1. That while he was receiver, that is, during the term stated in the bond, and up to the 30th September, 1837, he had received this amount of public money, and had then and there fused to pay it over to the United States.

2. That between the time of his appointment and the 30th of September, he had received this amount of public money, and that it remained in his hands on the 30th of September, and that he had then and there refused to pay it over to the United States.

To this replication the defendants have demurred, substantially, but on a single ground. It is, that it does not appear that the public money, which he has not paid over, was received by him after the date of the bond; and it is alleged, that if the money in question was collected by him before that period, the sureties are not answerable for it, even though it was collected during the term for which the bond prescribed his official duties, and though it was "in his hands," and remained "in his possession" up to the 30th of September, when he retired from office.

It will scarcely be denied that, so far as the receiver himself was concerned, it was his duty to pay over and deposit this money, at whatever time it was received, as completely after 193*] the 15th of June as it was before. It is his duty, from the nature of his office, which requires him to pay over and deposit all moneys, whenever received, during his term. It is his duty, from the express words of the law, and the regulations of the Treasury Department; they make no distinction in regard to the

But it may be said that the duty was one which should have been performed before the bond was executed; that the money received before the 15th of June should have been paid over before that day. To that it may be answered, in the first place, that such is not necessarily the fact. It does not by any means follow that there was a default, in not paying over, even though the money had been received before the date of the bond. If the sum in question was received in the last preceding month, there was nothing in the law which hequired it to be paid over before the date of the bond, and the demurrer admits the fact to be so, by objecting only to the want of certainty as to the receipt of the money at the day of the date of the bond. We have a right, under this demurrer, to assume that this money was all received within thirty days preceding the

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date of the bond; we can have no knowledge that such was not actually the fact; if it was so, the duty of the receiver was to pay it over after the date of the bond, though it was received before. Or, suppose that a receiver should collect nine thousand dollars before the date of the bond, and one thousand dollars after; the law requires him to deposit only when he has ten thousand dollars; is not the surety liable if, when the period of deposit arrives, after the date of the bond, he fails to make it?

But, in the second place, if we admit that the money was received before the date of the bond, and that it ought to have been then paid over, does that make it less a duty to pay it over afterwards? The real and great default is in the permanent refusal to pay; a neglect to account, a failure to make report, a refusal to deposit the money at a prescribed day, may each be great improprieties and violations of official duty, but it is the final neglect to pay over the money which constitutes the great breach; and this does not become less a breach because there have been other and previous neglects.

But, in the third place, if we admit that the 195*1 money was received before the date of the bond, and ought to have been paid over before the date, the terms of the bond expressly provide for a default in this payment. Whether the proper deposit had been made was unknown to the public officers when the bond was taken; they therefore required that it should embrace the duties of Boyd during his whole term-that is, from the 23d of December for four years. Such are the words of the bond; such are its voluntary obligations on the part of the sureties. There is nothing, as I have said, in the assignment of these breaches which conflicts with the fact that the money was collected within a period that did not require its payment to be made to the United States before the date of the bond; but if there were-if it is admitted that the money was all received on the first of January, 1837, is not that within the term of four years from the 23d of December, 1836; during all of which, previous to the date of the bond as well as subsequent, these sureties stipulate the receiver's duties shall be faithfully performed? That a bond, voluntarily entered into, to guarantee the performance of all duties from a day expressly stipulated in the bond, though anterior to its date, to another day also atipulated-if the principal so long remains in office —is a legal and binding instrument, cannot be denied. And such was the case here, and such is the condition that is broken; if we take the facts of the case to be more favorable to the sureties than necessarily results from the assignment of breaches to which they demur.

If, then, it be alleged that this payment ought to have been made before the date of the bond, we say: 1st. That such is not necessarily the fact. The money may have been received within a month of that date. 2d. That if it ought, it is not less an obligation on the sureties to see it subsequently paid. 3d. That the sureties, by the terms of the bond, stipulated to meet such a contingency.

Nor can the sureties relieve themselves by the allegation that there was a neglect on the

part of the obligees. To say nothing of the well recognized principle that the rights of the public cannot be impaired by the neglect of its officers to require the proper settlements, or to institute suits against the principal. The United States v. Kirkpatrick, 9 Wheaton, 720; The United States v. Vanzant, 11 Whea- [*196 ton, 184; The United States v. Nicholl, 12 Wheaton, 509. Yet, as the case presents itself by this demurrer, it is quite evident that there was no neglect whatever: that, at the time the bond was signed, the money may have been received, and yet the period to account for it or to deposit it has not arrived. It is, indeed, probable that the state of his account could not have been known. He was appointed in Washington on the 27th of December; he could scarcely have commenced his official duties in Mississippi before the middle of January; his first quarterly account was to be made up to the 1st of April, and necessarily requires some time after that date for its transmission with the vouchers; the bond, sent from Washington to Mississippi, was executed there in June. It may well be doubted, therefore, even if these moneys were received before the 1st of April, whether this default could have been known before the bond was sent for execution. But it is far more probable that these moneys were received after the first of April; if so, there had been no account rendered of the receipts; none had been required by law; the sureties knew there could have been none; of course no neglect, to their prejudice, is chargeable against the United States or their officers.

If these views are correct, the following position is established: That where a receiver is bound by his bond to deposit moneys in his hands, received during a specified official term, it is a breach of that bond if he neglects to deposit what was received during the time prescribed, but previous to its date; and this is especially the case if the bond is dated after the receipt of the money but before the time of deposit prescribed by law or regulation, or if the money received actually remains in his hands at that date.

The judicial decisions of the courts of common law, as well as of this court, seem to establish the same position. There is nothing in the condition of this bond that the obligor cannot perform; and it is a well settled principle that if a condition can be performed, without breach of the law, it is good: Mitchell v. Raynolds, 10 Modern, 134. In the case of Arlington v. Meinch, 2 Saunders, 414, it was held that the recital was the part of the bond which governed its construction, and that the condition must be construed by it. In the case of Newman v. Newman, 4 Maule & Sel. [*197 66, it was held that if there were some things required in the condition which were void, this did not release the obligors from the performance of the other conditions. The principle is well established that the sureties are bound by terms of the agreement, as recited in the bond, unless some parts are illegal, and then their responsibility remains for the residue. It is their agreement that controls, and this is a matter for the court and jury to judge of. In the case of Hassell v. Long, 2 Maule & Sel. 363, the obligor was a church warden, holding from year to year, commencing in the month of

April; on the 5th December, 1796, he gave his official bond for the faithful performance of his duties then imposed, or that might thereafter be imposed; the plaintiffs sought to charge him for duties after April, 1797, to which the surety objected, and was sustained by the court. It was admitted that he was bound for the whole year, or term during which the bond was given; the only question was, whether a fair construction of the words of the bond extended his liability further. In the case of Nares v. Roules, 14 East, 510, a collector was appointed under an Act of Parliament to perform certain duties, which were to be designated by another act "to be" subsequently passed, the title of which was given; it so happened that the act thus referred to was actually passed before the date of the bond, or the law which required it, and the collector acted under it, and became a defaulter; it was held that his sureties were liable, it being evident, from the whole tenor of the bond, that it referred to the act previously passed, notwithstanding the prospective words. In the course of argument, it was said, as a thing not doubted, that the commissioners of revenue "might well take such a security that the duties that were actually collected should not be lost." In the case of Curling v. Chalklen, 3 Maule & Sel. 508, a collector of poor rates gave bond, "that he should render to the church-wardens at, etc., and as often thereafter as required, a true account of the moneys so collected, etc., and of all moneys rated and not received; and pay over the moneys so by him collected and received and remaining in his hands." The collector was appointed in 1806; the bond was dated 21st July, 1810; and the appointment expired in 1814. Lord Ellenborough said: "I think it is clear, from the act of 198*] Parliament, and the condition of this bond, that it was intended to be given as a security for the faithful accounting of the principal for the time prior to that when the bond was executed, and also for the whole period of time after the execution of the bond, during which he should continue in the office of collector." In the case of Peppin v. Cooper, 2 B. & A. 431, the collector of rates was appointed 22d August, 1812; he gave bond, dated 18th December, 1812, that he should from time to time and at all times thereafter, faithfully collect, etc., Abbot, Ch. J., said: "I am of opinion that the condition of the bond is satisfied by the faithful collection of the rates for one year. The office of collector must be annual. I think, therefore, it was the intention of the parties that this bond should only be co-extensive with the duties to be performed."

In the case of Dawes v. Edes, 3 Mass. 177, an administrator gave bond to render, etc., of the goods, etc., which have or shall come to his hands. It was objected by the surety that these words did not imply a retrospective meaning, but the court said that the bond clearly covered what came into the administrator's hands before as well as after its date. In Roth v. Miller, 15 Ser. & Raw. 107, Judge Duncan said: "Although it may be admitted that bonds are not to be construed strictly against sureties, yet securities are as much bound, according to the true meaning of the obligation, as principals." In 4 Yates, 340, and 4 Dallas, 79, Judge Smith has laid down the true principle of construction to be, that the surety is not

| liable further than the true intention and meaning of the parties expressed in the instrument, and the legal construction of the words used, make him liable; but so far he is liable, and the legal construction of the words make him answerable. All who bind themselves in a bond, are equally obligors; and there are many cases in the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties. And it is a rule in the construction of all deeds that they are to be construed most strictly against those who make them, and most favorably for those for whose benefit they are made, as every contract is. In the case of The Dedham Bank v. Chickering, 3 Pickering, 341, the same principle is sustained It was held there that where the terms of the bond were general, so as to embrace the whole period of a person being in of- [*199 fice, they could not be restrained to a single year, although it had been customary to reelect him from time to time. Turning to the decisions of this court, we find in the case of Sthreshley v. The United States, 4 Cranch, 169, the Chief Justice laying down the duties of a collector of revenue, for which his sureties are answerable, to be, first, a liability to pay over what he has collected; and, second, to answer for any neglect in collecting it. While the court in that case refused to make the sureties answerable for outstanding duties at the time his office ceased, they held them to be answerable for the payment of all that had been collected before that time. The case of The United States v. Giles, 9 Cranch, 212, was that of a marshal, who gave bond, dated the 9th of January, 1801, well and faithfully to perform the duties of his office, but without any limitation whatever, as to the period when the obligation of the sureties was to begin. It appeared that previous to the date of his bond, the marshal had collected a sum of public money, which he had not paid over, as directed by the treasury regulations to do; but it did not appear that any demand was made upon him, by the United States, to pay it over. The sureties contended that, as the money had been collected before the date of their bond, which, by its terms, had no relation to any duties previous to its date, it was not a breach of duty for which they were answerable. Two of the judges agreed with this view of the case; two others differed with them, and held that the sureties were liable, because the money, though received before the date of the bond, was then in the marshal's hands, and not paid over; and the other two appear to have concurred on this point, though they considered the want of evidence of any demand having been made of the marshal, as sufficient to relieve him from the charge of having converted it. This case wants the essential feature of the present one; an express stipulation in the bond, of the time when the receiver's liability is to begin; yet even there, the payment of the money, independent of the time of receipt, is regarded as a substantial duty, which, if violated, involves a breach of the condition. In the case of Walton v. The United States, 9 Wheat. 651, the court, in speaking of the official bond of a receiver, say that it is not an instrument given for a particular balance of money; but that it is a security mere [*200

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