2 From these decided cases it clearly results that where a surety voluntarily enters into a bond he is bound by its conditions as they are to be deduced from the recitals of the instrument itself; that these conditions may be retrospective in their character, and apply to a series of transactions commencing before the date of the bond, if such is the agreement therein; that the agreement to pay over public moneys applies equally to those received before, as after the date of the bond, even without a retrospective clause, where they remain in hand at the date of the bond. In the present case, the record establishes the facts necessary to bring it within these principles. The bond is voluntary; it embraces in terms all acts of the principal as far back as the 23d of December; the money was in his hands at the date of the bond. An objection of a different character was taken by the counsel for the defendant in error, but not pressed in the argument. It is to the form of the replication, which, it is alleged, "does not fairly respond to the plea;" but is "evasive and uncertain." An examination of the pleadings will show that this objection cannot be sustained; but this is unnecessary; for if it were valid, it was not assigned as a special cause of demurrer, without, which, by the law and practice of Mis- [*202 sissippi, it could not be noticed by the court. Revised Code of Miss. 614. ly for the officer performing his duties in good | the sureties with the United States, as fully as On the whole case, therefore, it is submitted that the court below erred in sustaining the demurrer, and that the liability of the sureties ought to have been enforced. Mr. Cocke, for the defendant. This was an action of debt, brought by the plaintiffs in error against the defendants, in the Circuit Court of the United States for the District of Mississippi. It is founded on the official bond given by Gordon D. Boyd, as receiver of public moneys of the United States, for the district of lands subject to sale at Columbus, in the State of Mississippi. that he and his sureties did not execute the bond sued on, until the 15th day of June, 1837; and that the bond was not approved at the Treasury Department of the United States until the 9th day of October, 1837. The sureties, the present defendants, craved oyer of the bond and the condition; and the condition being read to them in these words: "The condition of the foregoing obligation is such, that whereas the President of the United States, hath, pursuant to law, appointed the said Gordon D. Boyd receiver of public moneys for the district of lands subject to sale at Columbus, in the State of Mississippi, for the term of four years from the 27th day of December, 1836: Now, therefore, if the said Gordon D. Boyd shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect; otherwise, it shall abide and remain in full force and virtue." The defendants pleaded that the said Gordon D. Boyd did, from time to time, and at all times, after the making of the said bond' and condition thereof, well and truly observe, perform, fulfil, and keep the condition of the said bond, by faithfully executing and discharging the duties of his office, according to the tenor and effect, true intent and meaning of the condition of the said bond. 4th. The said second breach does not state or show that the said Gordon D. Boyd neglected, failed, or refused to pay over any moneys collected by him as such receiver, at any time after the day of the date of said bond. To this there was joinder in demurrer; on which the Circuit Court, after argument, gave To this plea the plaintiffs replied, and as-judgment for the defendants. To reverse this signed two breaches of the condition to the said bond, to wit: 1st. That the said Gordon D. Boyd did not 203*] well and truly keep and perform the condition of the said bond declared on, but broke the same in this, to wit: that the said Gordon D. Boyd, after the said 27th day of December, 1836, and while he was receiver of public moneys for the district of lands subject to sale at Columbus, in the State of Mississippi, and as such receiver, received of the public moneys of the United States divers large sums of money, amounting in the whole to a large sum of money, to wit: to the sum of fifty-nine thousand six hundred and twentytwo dollars and sixty cents, at the district aforesaid; which said sum of fifty-nine thousand six hundred and twenty-two dollars and sixty cents, the said Gordon D. Boyd then and there wholly failed, neglected, and refused to pay over to the plaintiffs, pursuant to his instructions from the Secretary of the Treasury of the United States, as he was bound to do by law, and the duties of his said office of receiver. 2. That the said Gordon D. Boyd, after the 27th day of December, 1836, and on divers days and times between that day and the 30th of September, 1837, and while he was receiver of public moneys for the district of land subject to sale at Columbus, in the state of Mississippi, and as such receiver, received divers large sums of the public money of the United States, amounting in the whole to a large sum of money, to wit: to the sum of fifty-nine thousand six hundred and twenty-two dollars and sixty cents, at the district aforesaid; and that the said sum of fifty-nine thousand six hundred and twenty-two dollars and sixty cents remained in the hands of the said Gordon D. Boyd, as receiver as aforesaid, on the 30th day of September, 1837, to wit: at the district aforesaid; and that the said Gordon D. Boyd then and there wholly failed, neglected, and refused to pay the same over to the plaintiffs, pursuant to his instructions from the Secretary of the Treasury of the United States, as he was bound to do by law, and the duties of his office. judgment, the plaintiffs have prosecuted their writ of error to the Supreme Court of the United States. To sustain the judgment of the court below, on the part of the defendants, it is insisted: 1st. That it is the duty of the court to look into the contract itself; the construction of it is a question of law, and the court will construe it with a view to the real intention of the parties to it. It will be found that the contract was entered into on the 15th of June, 1837, and approved on the 9th of October, 1837; that it is prospective in its terms. It is an executory contract, both in its terms and legal effect. Its object was to secure the faithful discharge of duties thereafter to be performed. If, at the time of the execution of the bond, on the 15th of June, 1837, the sureties had been told that Boyd had already become defaulter to the government, to the amount of fifty-nine thousand six-hundred and twenty-two dollars and sixty cents, and they had then been asked to become responsible for that defalcation, it would have involved very different considerations than those of an undertaking that he should thereafter execute and discharge the duties of his office. In the matter of Rector, in the case of Farrar and Brown v. The United States, 5 Peters, 373, this court well say: "If the contract is entered into to cover a past dereliction, the bond should have been made retrospective in its language. The securities have not undertaken against his past misconduct. In the case of The United States v. Giles et al. 9 Cranch Rep. 212, the court say: "If the marshal, before the date of his official bond, receive money upon an execution [*205 due to the United States, with orders from the comptroller to pay it into the Bank of the United States, which he neglects to do; the sureties in his official bond, executed afterwards, are not liable therefor upon the bond, although the money remained in the marshal's hands after the execution of the bond." This case, on principle, covers all the grounds upon which Boyd's securities are attempted to be inculpated. So far as the proceedings in this action upon To this replication the defendants demurred; the bond are concerned, there is, perhaps, no and, for causes of demurrer, stated the follow-difference in point of law between the liability ing, to wit: of Boyd and the liability of the sureties. It may be said that it is the contract of both, and binds both or neither. United States v. Orr's Adm'rs, 8 Peters Rep. 399. 1st. The first breach does not state, or show the time at which the sum of money mentioned was received by the said Gordon D. Boyd, as receiver: whether the same was received before or after the day of the date of the said bond. 2d. The first breach does not state or show 204*] that the said Gordon *D. Boyd hath failed, neglected, or refused to pay over to the plaintiffs, any moneys collected by him at any time after the day of the date of the said bond. 3d. The second breach assigned, does not state or show any time at which the said Gordon D. Boyd received the said sum of money mentioned in the said second breach. The United States are, however, not without remedy; for there can be no doubt but that an action in another form would lie against Boyd for the amount received, however or whensoever received. Ibid. The Supreme Court may now be informed that, for the amount of his defalcation, Boyd, in an action of assumpsit, at the suit of the United States against him, for so much money had and received to the use of the United States, has confessed a judgment in the court below. But be this as it may, it cannot be true that the sureties can be inculpated for any defalcation that may have occurred prior to their having become sureties. The contract of a surety is to be construed strictly, both in law and in equity; and his liability is not to be extended by implication beyond the terms of his contract. Miller v. Stuart et al. 9 Wheat. 680. To the extent, and in the manner pointed out in his obligation, is the surety bound, and no further; and he has the right to stand upon the very terms of his contract. Ibid. 2d. In a case like the present, the pleading justly commands our attention. The replication holds the important position of the declaration, and should state the facts upon which the plaintiffs rely for a recovery, with the same certainty as would be required in a declaration; a certainty at least equal to the legal effect of the contract declared on. It should show the matter of right, in point of law, on which the plaintiffs seek a recovery. It should support the declaration, and be at the same time re206*] sponsive to the plea. It should either confess and avoid the plea, stating distinctly the matter of avoidance, or it should deny the plea, so that the defendants could take issue on the matter of fact on which the plaintiffs' legal right for a recovery depends. Based upon the position that the defendant's liabilities were, by the terms and legal effects of their contract, limited to the execution and discharge of the official duties from and after the 15th June, 1837, they tendered to the plaintiffs the issue that Boyd had from time to time, and at all times after the giving of the bond, well and truly kept and performed the condition of it. It is manifest that the plaintiffs, in their replication, have attempted to dodge this ques tion. They have failed, and refused fairly to respond to the plea; and from anything appearing in the replication, it is as reasonable to suppose that the money mentioned was received between the 27th day of December, 1836, and the 15th of June, 1837, as it is to suppose that the money was received after the 15th of June, 1837. The replication is, therefore, obviously evasive and uncertain, and fails to set forth such facts under the contract as, in point of law, entitle the plaintiffs to recover. The court below was assuredly right in sustaining the demurrer, and this court will affirm that decision. Mr. Justice Catron delivered the opinion of the court: This was an action of debt brought upon a bond with the following recital and condition, dated June 15th, 1837: "The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said Gordon D. Boyd receiver of public moneys for the district of lands subject to sale at Columbus, in the State of Mississippi, for the term of four years from the 27th day of December, 1836. "Now, therefore, if the said Gordon D. Boyd shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect: otherwise, it shall abide and remain in full force and virtue." *The defendants craved oyer of the [*207 bond, condition, etc., and pleaded performance of the condition. By a replication, the defendants assigned two breaches. 1. That said Boyd, after the 27th day of December, 1836, 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. 2. That said Boyd on the 27th day of December, 1836, and at divers days between that day and the 30th day of September, 1837, received fifty-nine thousand six hundred and twentytwo dollars as receiver, which sum remained in his hands on the 30th day of September, 1837; and he failed to pay the same pursuant to his instructions from the Secretary of the Treasury, as he was bound to do by law, and the duties of his office. To this replication the defendants demurred, and the court below sustained the demurrer. The first question arising on the pleadings is, whether the sureties of Boyd are bound for defalcations between the 27th of December, 1836, the date of the appointment, and the 15th day of June, 1837, the date of the bond. The condition of the bond is prospective, and in its last clause does not differ in effect from that passed on in the case of Farrar and Brown v. The United States, in 5 Peters, 374, 389. In that case, William Rector had been appointed surveyor of public lands, and given bond with sureties, conditioned, "If the said William Rector shall faithfully execute and discharge the duties of his office, then said bond to be void," etc. Rector had been appointed and commissioned as surveyor on the 20th February, 1823. The bond bore date the 7th day of August, 1823. The prominent question presented on the trial was, whether the sureties of Rector were liable for moneys received by him as surveyor, and appropriated to his own use, after his appointment, and before the execution of the bond; on which the court held, that the sureties could only be made answerable for moneys in Rector's hands at the date of the bond; which were held by him in his official capacity, in trust for the government, and not for moneys previously appropriated to his own use. Say the court: "If intended to cover past dereliction, the *bond should have been made retro- [*208 spective in its language. The sureties have not undertaken against his past misconduct." and pay quarterly, as prescribed by the rules of the Treasury Department; or monthly, if the sum of ten thousand dollars had been received during any one month, was no legal defalcation of which the sureties can avail themselves. Laches are not imputable to the government. The regulations requiring settlements to be made by its officers at short periods are designed for the protection of the government, and merely directory to the officers, and form no part of the contract. Such is the settled doctrine of this court as holden in The United States v. Kirkpatrick, 9 Wheaton; The United States v. Vanzant, 11 Wheaton; and The United States v. Nicholl, 12 Wheaton, 509. But the failure of the receiver to account, It follows, the averment in the replication, | tional pleadings, or an amendment of the presthat Boyd, from the 27th of December, 1836, ent ones, according to the rules and practice of to the 30th of September, 1837, had received on the Circuit Court; and on such terms as it behalf of the United States, the sum of fifty- may impose. nine thousand six hundred and twenty-two dollars, which sum, at the last date, remained in his hands, and for which he then failed to account, as bound to do by law, and the duties of his office, is a good breach of the condition, and well assigned; it matters not at what time the moneys had been received, if after the appointment they were held by the officer in trust for the United States, and so continued to be held at, and after, the date of the bond. That they were so holden at the end of the third quarter of 1837, is admitted by the de murrer. It is insisted on behalf of the United States, that aside from the foregoing considerations, the sureties are bound equally with the principal in the bond, on the ground that the condition, on settled legal principles, and by implication, is retrospective, and covers all defaults of the officer, from the date of the commission; because, it is recited, and part of the obligation, that Boyd had been appointed receiver for four years from the 27th day of December, 1836. We have with much care considered this position, and think it cannot be sustained. This court held, in Miller v. Stuart, 9 Wheat. 702, that the liability of a surety is not to be extended, by implication, beyond the terms of his contract; that his undertaking is to re209*] ceive a strict interpretation; *and not to extend beyond the fair scope of its terms; and that the whole series of authorities proceeded on this ground. The principal ones relied on in that case have been relied on in the present; and we think the principles settled by them preclude the court from maintaining that the sureties are liable by implication, contrary to the plain prospective obligation of the bond: "that the said Boyd shall faithfully execute and discharge the duties of his office." In the language of the court, in Farrar and Brown v. The United States: "If intended to cover past dereliction, the bond should have been made retrospective in its language." Some difficulty has been presented in regard to the form of the replication, testing it by the common law principles of pleading. It avers several breaches. The cause, however, comes by writ of error from the District of Missis sippi; and the modes of proceeding of that State govern the pleadings. By the Act of 1822, sec. 2, found in the Revised Code of Mississippi, 614, any number of breaches may be assigned; and by sec. 6, when a demurrer shall be joined in any action no defect in the pleadings shall be regarded by the court, unless specially alleged in the demurrer, as causes thereof. That several breaches had been as signed is not alleged as a special cause of demurrer, and therefore could not have been noticed by the court, had no provision existed justifying more breaches than one; even had such replication been contrary to the strict rules of pleading by the common law. It is proper to remark that when this cause is remanded to the Circuit Court for further proceedings to be had therein, it will be in the condition it would have been, had that court overruled the demurrer; and subject to addi We order that the judgment be reversed, the demurrer overruled; and that judgment be entered by the Circuit Court, for the penalty of the bond in favor of the United States against the defendants, to be discharged by the assessment of damages on the second breach in the replication, unless the pleadings, on leave granted, be amended, in prevention of such judgment and assessment of damages. *This cause came on to be heard on [*210 the transcript of the record from the Circuit Court of the United States for the Southern district of Mississippi, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed; and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to overrule the demurrer, and to enter judgment for the penalty of the bond, in favor of the plaintiff, against the defendants, to be discharged by the assessment and payment of damages on the second breach in the replication, unless the pleadings, on leave granted, be amended, in prevention of such judgment and assessment of damages. Motion by the counsel of the defendant to docket and dismiss a case in which a writ of error had been sued out of the Circuit Court, the plaintiff in error having failed to file the writ of error in the Supreme Court, and to prosecute the same. The counsel for the defendant in error produced the Circuit Court, and a citation signed by the judges original writ of error, signed by the clerk of the of the Circuit Court. Held, that the substance of the forty-third rule of the court was complied with; and the case was docketed and dismissed. The production of this writ of error, with the citation, is the highest evidence that the writ of error has been duly sued out and allowed. The certificate of the clerk of the Circuit Court required by the rule, is but prima facie evidence. error, to docket and dismiss the suit, under the forty-third rule of the court. Na motion on behalf of the defendant in Mr. Justice Story delivered the opinion of the court: In this case a motion has been made on behalf of the defendant in error, to docket and dismiss this suit, under the forty-third rule of the court. That rule allows the suit to be docketed and dismissed upon the production of a certificate from the clerk of the court below, certifying that the writ of error had been duly sued out and allowed. In the present case no such certificate is produced. But the original writ of error signed by the clerk of the court below, and also a citation signed by the judge of the court, is produced by the defendant in error, and is now before us. Under these circumstances, we are of opinion that the sub stance of the rule is complied with. The cer- | lants against him and two other persons named tificate of the clerk is but prima facie evidence in the proceedings, upon a promissory note of the issuing and allowance of the writ of signed by them, and purporting to be for the error; whereas, the production of the writ of sum of five thousand dollars, upon which judgerror, with the citation, is the highest evi- ment and execution had issued. dence of the fact that the writ of error has *The complainant charges in his bill, [*214 been duly sued out and allowed. Under these that the claim of the appellants against him is circumstances, the court are of opinion that fraudulent, and he sets out fully the parthe motion ought to be granted. In point of ticular facts upon which he relies to prove the fact, this same question came before this court fraud, and avers that no process, save the in the case of Ward et al. v. The Common-execution, was served upon him in the suit at wealth Bank of Kentucky, at January 212*] *Term, 1838, under circumstances less cogent; and the same decision was then made. In that case, certified copies of the writ and citation were filed, and not the originals; and the court ordered the case to be docketed and dismissed. 213*] *MARTIN_A. LEA, Monroe Rabetaille, and Charles G. Langdon, Appellants, V. ENOCH S. KELLY, Appellee. No appeal from interlocutory decree. law, and that he had no notice that the suit was brought against him, until the execution was issued; that he entered no appearance to the suit, nor filed any plea in it, nor authorized anyone to do it for him; and that if any attorney had done so, it was without the complainant's knowledge or consent; and prays that the appellants, who were made defendants in the bill, might be perpetually enjoined from proceeding against the complainant on said judgment and also for general relief. The injunction was accordingly granted by the court; and afterwards, Lea and Langdon, two of the appellants, appeared and answered, denying all fraud, and alleging that their claim against the appellee was fair and just. It does not appear that Rabetaille, the other defendant, answered the bill; and, in this state of the proceedings, the Circuit Court, at April Term, 1839, passed the following decree: "This day came the parties by their solicit ors, and this cause coming on to be heard, upon the bill, answer, and exhibits, it is ordered, adjudged and decreed, that, upon condition that the said Enoch S. Kelly, complainant, appear, plead to the merits of the case, and go to trial on the same at the next term of this court, waiving the question of jurisdiction, and pay costs of the suit at law and the proceedin equity, a new trial be awarded to the said complainant." A judgment was entered on a promissory note drawn by Kelly and others in favor of Lea and others, in the Circuit Court of Alabama. Afterwards. Kelly, the appellee, filed a bill on the equity side of the court, for the purpose of being relieved from the judgment at law obtained against him and two other persons, on the promissory note. The bill alleged fraud in the plaintiffs in the suit, and that the complainant had no notice of the suit, and had not authorized an appearance, or filed any plea in the same. The bill prayed for a perpetual injunction of proceedings on the judgment, and for general relief. The injunction was granted; and afterwards, on the appearance of two of the plaintiffs in the suit at law, the Circuit Court de creed, that, on the condition that the complainant, Kelly, appear and plead to the merits of the case, waiving the question of jurisdiction, and pay costsings of the sult at law, and the proceedings in equity, a new trial be awarded to the complainant. Two of the plaintiffs in the suit at law, who had appeared to the bill, appealed to the Supreme Court, seeking to reverse this decree. Held, that the decree of the Circuit Court was merely interlocutory; and was not a final decree for which an appeal could be taken. It is from this order or decree that the present appeal has been taken; and it is evident that the order is merely interlocutory, and that no final decree has been passed in the case. The bill has not been dismissed, nor has the injunction been made perpetual. The new trial APPEAL from the Circuit Court of the Unit- at law appears to have been directed to inform ed States, for the Southern District of Alabama. Mr. Kee, for the appellees, moved to dismiss the appeal. He alleged that the decree of the court, from which the appeal was prosecuted, was not a final decree. Mr. Chief Justice Taney delivered the opinion of the court: A motion has been made by the appellee to dismiss this case, upon the ground that the decree of the Circuit Court, from which the appeal has been taken, is not a final decree, within the meaning of the Act of 1803, ch. 93. It appears that a bill was filed against the appellants, in the Circuit Court of the United States for the Southern District of Alabama, by Enoch S. Kelly, the present appellee, for the purpose of being relieved from a judgment at law in the said court, obtained by the appel NOTE. As to what is a final decree or judgment from which appeal lies, see notes to 5 L. ed. U. S. 302; 49 L. ed. U. S. 1001; 62 L.R.A. 515. the conscience of the court; and the bill retained, and the injunction continued, until the finding of the jury should be known. The suit in equity is therefore yet pending and has not been disposed of by final decree, and the appeal to this court must be dismissed. *ANN BUYCK, Widow of Don Augustin [215 Buyck, Deceased, and The Unknown Heirs of said Buyck, Appellants, V. THE UNITED STATES, Appellees. Condition of grant of land not performed, grant is void-grant void for uncertainty. The decree of the Superior Court of East Florida, by which a grant of fifty thousand acres of NOTE. As to conditions precedent and subsequent, in deeds and wills, see note to 6 L. ed. U. & 101. As to who may perform and effect, see note to |