ation is supposed to be entered into on valid consideration and to be obligatory, if the parties be ostensibly able, until the contrary is shown; and the same rule applies to a government which is capable of making contracts.

§ 16. What constitutes an illegal consideration for an official bond.

It is also contended that this bond is void, because it is entered into on a consideration which is either forbidden by express law, or contrary to the general policy of the law.

The plea refers to the act passed on the 3d of March, 1809, "to amend the several acts for the establishment and regulation of the treasury, war and navy departments." I have already said that I do not consider the prohibition of this act as comprehending agents of fortifications, because they do not belong to the military establishment, nor do their employments relate to it. It is unnecessary to enter into any argument in support of this opinion, because it is of no importance to the point under consideration. The effect, if the act applied to the office, would be to show that the appointment of James Maurice to the office of agent of fortifications was not legal and that effect is produced by the construction I have given to the constitution. I consider the appointment of James Maurice to the office of agent of fortifications by the secretary of war as invalid; but the question, is the bond void on that account? still remains to be considered. It was undoubtedly intended as an office bond, and was given in the confidence that James Maurice was legally appointed to office. If the suit was instituted to punish him for the neglect of duty, in the nature of non-user, or for any other failure, which could be attributed in any degree to the illegality of his appointment, I should be much disposed to think the plea a bar to the action. But this suit is brought to recover the money of the United States which came to the hands of James Maurice, in virtue of his supposed office, and which he has neither applied to the purpose for which he received it, nor returned to the treasury. In such a case, neither James Maurice, nor those who undertook for him, can claim anything more than positive law affords them.

The plea does not controvert, but must be understood to confess, the material facts charged in the declaration. It must be understood to confess that the money of the United States came to the hands of James Maurice as agent of fortifications; that it was the duty of such agent to disburse it for the use of the United States, in the manner prescribed by the army regulations, or to account for it; that he has failed to do either, and that they were bound for him in this respect. Admitting these things, they say it is a bar to the action brought for the money that his appointment was illegal.

17. Effect of the illegality of consideration of an official bond on the liabil ity of the sureties.

If the bond contained no reference to the appointment of James Maurice, as agent of fortifications; if its condition stated only, that certain sums of money had been delivered to him to be disbursed under the discretion of the principal engineer, in the purchase of materials for fortifications, and in the payment of laborers, its obligation, I presume, would not be questioned. It would be a contract which the United States might lawfully make. If, instead of specifying the particular purposes for which the money was received, the condition of a bond refers to a paper which does specify those purposes, I know of no principle of reason or of law which varies the obligation of the instrument from what it would be, if containing that specification within itself. That is certain which may be rendered certain; and an undertaking to per

form the duties prescribed in a distinct contract, or in a law, or in any other known paper prescribing those duties, is equivalent to an enumeration of those duties in the body of the contract itself.

This obligation is an undertaking to perform the duties appertaining to the office of agent of fortifications. Those duties were prescribed in the army regulations, and were such as any individual might lawfully undertake to perform. The plea does not allege that the thing to be done was unlawful, nor does it allege that the illegality of the appointment to office constituted any impediment to a performance of the condition of the bond. Were it even improper to disburse the money received in the manner intended by the contract, it could not be improper to return it. There can be nothing unlawful in the engagement to return it. The obligation to return it, as in every other case of money advanced by mistake, is one which, independent of all express contract, would be created by the law itself. So far as respects the receiver himself, he would be bound by law to return the money not disbursed, and if he would be so bound, why may not others be bound with him for his doing that which law and justice oblige him to do?

Admitting the appointment to be irregular, to be contrary to the law and its policy, what is to be the consequence of this irregularity? Does it absolve the person appointed from the legal and moral obligation of accounting for public money which has been placed in his hands in consequence of such appointment? Does it authorize him to apply money so received to his own use? If the policy of the law condemns such appointments, does it also condemn the payment of moneys received under them? Had this subject been brought before the legislature, and the opinion be there entertained that such appointments were illegal, what would have been the probable course? The secretary of war might have been censured; an attempt might have been authorized to make him ultimately responsible for the money advanced under the illegal appointment; but is it credible that the bond would be declared void? Would this have been the policy of those who make the law? Let the course of congress in another case answer this question.

It is declared to be unlawful for any member of congress to be concerned in any contract made on the part of the United States, and all such contracts are declared to be void. What is the consequence of violating this law, and making a contract against its express provisions? A fine is imposed on the violator, but does he keep the money received under the contract? Far from it. The law directs that the money so received shall be forthwith repaid, and in case of refusal or delay, "every person so refusing or delaying, together with his surety or sureties, shall be forthwith prosecuted at law for the recovery of any such sum or sums of money advanced as aforesaid.” If, then, this appointment be contrary to the policy of the law, the repayment of the money under it is not, and a suit may, I think, be sustained to coerce such repayment on the bond given for that purpose.

The cases cited by the defendants do not, I think, support the plea. Collins v. Blantern, 2 Wilson, 341, was a bond given, the consideration of which was illegal. It was to compound a prosecution for a criminal offense. It was to induce a witness not to appear and give testimony against a person charged with the commission of a crime. The court determined that the bond was void, and that the illegal consideration might be averred in the plea, though not appearing in the condition. It is only wonderful that this could ever have been doubted.

The case of Paxton v. Popham, 9 East, 408, and the case of Pole v. Harrobin, reported in a note in page 416 of the same volume, are both cases in which bonds were given for the payment of money for the performance of an act which was contrary to law. These cases differ in principle from that at bar. The bond was not given to induce the illegal appointment, or for any purpose in itself unlawful. The appointment had been made, and the object of the bond was to secure the regular disbursement of, or otherwise accounting for public money advanced for a lawful purpose. The bond was not then unlawful, though the appointment was.

The case of Nares and Pepys v. Rolles, 14 East, 510, was a suit on a bond given by a collector and his sureties for the due collection and payment to the receiver-general of certain duties assessed under an act of parliament. The duties were collected but not paid to the receiver-general; in consequence of which the collector was displaced and suit brought against one of the sureties in the bond. The defense was that the duties were not in law demandable, and this defense was founded on an ambiguity in the language of the act. The argument turned chiefly on the words of the statute, but the counsel for the plaintiffs contended also that, supposing the act not to impose the taxes, yet the bond would not be void, for such a security might well be taken, that the duties which were actually collected should not be lost, but might be preserved, to be paid over to those who should be found ultimately entitled to receive the money. It was competent for him to enter into a bond to pay over voluntary payments made to him, although he might not have been able to enforce payment of the rates from those who might refuse.

In answer to this argument, it was said that, unless the act gave authority to assess and collect the duties, he was no collector, and could not be subject to any obligation for not paying money over to the plaintiffs, in that character, which was obtained by extortion. The court seemed inclined to this opinion, but determined that the taxes were imposed and assessed according to law, and, therefore gave judgment for the plaintiffs.

The impression which may, at the first blush, be made by this case will be effaced by an attentive consideration of it. If the money collected was not due by law, the plaintiffs could have no right to receive it, and had, consequently, no cause of action against the defendant. The money sued for was not their money, but the money of the individuals from whom it had been unlawfully collected. The bond to collect and pay over this money to the receivergeneral was a bond to do an unlawful act. The contract would have been clearly against law. In giving his opinion on this subject, the chief justice said: "Looking at the condition of this bond, as it appears upon the record, I cannot say that, if the rates were collected without any authority, the collector could be called upon to pay them over, because he would be answerable to the individuals from whom he had received the money, and would be entitled to retain it for his own indemnity."

The case at bar is, in principle, entirely different from that of Nares and Pepys v. Rolles. This is not money obtained illegally from others, and, therefore, returnable to them, but is the money of the United States, drawn out of the treasury. The person holding it is not entitled "to retain it for his own indemnity," against the claims of others, for there are no others who can claim it. The justice of the case requires, I think, very clearly, that the defendants should be liable to the extent of their undertaking, and I do not think the principles of law discharge them from it.

I am, therefore, of opinion that the demurrer to this plea ought to be sustained, and that judgment on it be rendered for the plaintiffs.

KENDALL v. STOKES.

(3 Howard, 87-103. 1844.)

ERROR to the Circuit Court for the District of Columbia.
Opinion by TANEY, C. J.

STATEMENT OF FACTS.- The record in this case is very voluminous, and contains a great mass of testimony, and also many incidental questions of law not involving the merits of the case, which were raised and decided in the circuit court, and to which exceptions were taken by the plaintiff in error. But both parties have expressed their desire that the controversy should now be terminated by the judgment of this court; and that the leading principles which must ultimately decide the rights of the parties should now be settled; and that the case should not be disposed of upon any technical or other objections which would leave it open to further litigation. In this view of the subject it is unnecessary to give a detailed statement of the proceedings in the court below. Such a statement would render this opinion needlessly tedious and complicated. We shall be better understood by a brief summary of the pleadings and evidence, together with the particular points upon which our decision turns; leaving unnoticed those parts of the record which can have no influence on the judgment we are about to give, nor vary in any degree the ultimate rights of the parties.

At the time of the trial and verdict in the circuit court, the declaration contained five counts. But after the verdict was rendered, the plaintiffs in that court, with the leave of the court, entered a nolle prosequi upon the second, third and fourth, and the judgment was entered on the first and the fifth. It is only of these two last mentioned counts, therefore, that it is necessary to speak. The verdict was a general one for the plaintiffs, and their damages assessed at $11,000.

The first count states that by virtue of certain contracts made with William T. Barry, while he was postmaster-general, and services performed under them, the plaintiffs, on the 1st of May, 1835, were entitled to receive and have allowed to them the sum of $122,000, and that that sum was accordingly credited to them on the books of the postoffice department; and that Amos Kendall, the defendant in the court below, afterwards became postmaster-general, and as such illegally and maliciously caused the items composing the said amount to be suspended on the books of the department, and the plaintiffs to be charged therewith; whereby they were greatly injured, and put to great expenses, and suffered in their business and credit.

The fifth count recites the act of congress of July 2, 1836 (6 Stats. at Large, 665), by which the solicitor of the treasury was authorized to settle and adjust the claims of the plaintiffs for services rendered by them under contracts with William T. Barry, while he was postmaster-general, and which had been suspended by Amos Kendall, then postmaster-general, and to make them such allowances therefor, as, upon a full examination of all the evidence, might seem right and according to principles of equity; and the postmaster-general directed to credit them with whatever sum or sums of money the solicitor should decide to be due to them, for or on account of such service or contract; and after this recital of the act of congress, the plaintiffs proceed to aver that

services had been performed by them under contracts with William T. Barry, while he was postmaster-general, on which their pay had been suspended by Amos Kendall, then postmaster-general, and that for these claims the solicitor of the treasury allowed the plaintiffs large sums of money amounting to $162,727.05; that the defendant had notice of the premises, and that it became his duty as postmaster-general to credit the plaintiffs with this sum; but that he illegally and maliciously refused to give the credit, by reason whereof the plaintiffs were subjected to great loss, their credit impaired, and they were obliged to incur heavy expenses in prosecuting their rights, to their damage in the sum of $100,000.

The defendant pleaded not guilty, upon which issue was joined.

At the trial, the plaintiffs offered in evidence the record of the proceedings in the mandamus which issued from the circuit court, upon their relation, on the 7th day of June, 1837, commanding the said Amos Kendall to enter the credit for the sum awarded by the solicitor. It is needless to state at large the proceedings in that suit, as they are sufficiently set forth in the report of the case in 12 Pet., 524; the judgment of the circuit court, awarding a peremptory mandamus, having been brought by writ of error before the supreme court, and there affirmed at January term, 1838. 12 Pet., 524. Various papers and letters were also offered in evidence by the plaintiffs to show that the allowances mentioned in the declaration had been suspended by the defendant; and that after the award of the solicitor, and before the original mandamus issued, he had refused to credit $39,472.47, part of the sum awarded, upon the ground that the items composing it were not a part of the subject-matter referred; and upon which, as the defendant insisted, the solicitor had no right to award. Other papers and letters were also offered, showing that after the judgment of the circuit court awarding a peremptory mandamus had been affirmed in the supreme court, the plaintiffs demanded a credit for the abovementioned balance on the 23d of March, 1838; that the defendant declined entering the credit, alleging that a recent change in the postoffice law had placed the books and accounts of the department in the custody of the auditor; and some difficulty having arisen on this point, the circuit court, on the 30th of March, 1838, issued a mandamus commanding the postmaster-general to enter the credit on the books of the department; and to this writ the defendant made return on the 3d of April, 1838, that the said credit had been entered by the auditor, who had the legal custody of the books.

The whole of this evidence was objected to by the defendant, but the objection was overruled and the testimony given to the jury. And upon the evidence so offered by the plaintiffs, before any evidence was produced on his part, the defendant moved for the following instruction from the court:

"The defendant, upon each and every of the plaintiffs' said counts, severally and successively prayed the opinion of the court, and their instruction to the jury that the evidence so as aforesaid produced and given on the part of the plaintiffs, so far as the same is competent to sustain such count, is not competent and sufficient to be left to the jury as evidence of any act or acts done or omitted or refused to be done by the defendant, which legally laid him liable to the plaintiffs in this action, under such count, for the consequential damages claimed by the plaintiffs in such count." This instruction was refused, and the defendant excepted.

The question presented to the court by this motion in substance was this: Had the plaintiffs, upon the evidence adduced by them, shown themselves en