author: Mr. Justice Catron

text:
    The United States, Appellants, v. The Heirs of John Forbes, Appellees.
    John Forbes, by memorial to Governor Kindelan, the Governor of East Florida, set forth, that, in 1799, there had been granted to Panton,' Leslie, and Company, for the purpose of pasturage, fifteen thousand acres of land, which they were obliged to abandon, as being of inferior quality. Forbes, as the successor to these grantees, asked to be permitted to abandon these fifteen thousand acres, and, in lieu, to have granted to him ten thousand acres, as an equivalent, on Nassau river. The petition avers, that the object was to establish a rice plantation. The petition was referred to “ the Comptroller,” who gave it as his opinion, that the culture of rice should be promoted. Governor Kindelan permitted the abandonment of the fifteen thousand acres granted before, and in lieu thereof, granted to John Forbes, for the object of cultivating rice, ten thousand acres in the district, or hanks of the river Nassau. Surveys of seven thousand acres of land, at the head of the river “ Little St. Marys” or <f St. Mary,” and three thousand acres in “ Cabbage Swamp,” were made under this grant. No description of the locality of the land, other than that in the certificate of the survey, was given; nor do the surveys prove, that the land surveyed lay in the district of the river Nassau. No evidence was given of the situation of “ Cabbage Swamp.” Held, that these surveys were not inade on the land granted by Governor Kindelan; and, according to the déeisions’of this Court, on all occasions, the surveys, to give them validity, must be in conformity with the grants on which they are founded ; and to make them the origin of title, they must be of the land described in the grant of the Spanish government.
    The cases of the United States v. Clarke, 8 Peters, 486. The United States v. Huertas, 9 Peters, 171, cited.
    The Courts of Justice can only adjudge what has been granted; and declare that the lands granted by the lawful authorities of Spain, are separated from the public domain: but where the land is expressly granted at one place, they have no power,"by a decree, to grant an dquivalent at another place, and thereby sanction an abandonment of the grant made by the Spanish authorities. The Courts of the United States have no authority to divest the title of the United States in the public lands, and vest it in claimants; however just the claim may be to an equivalent for land, the previous grant of which has failed.
    The case of the United States v. Arredondo, 6 Peters, 691, cited.
    The decree of the Supreme Court of East Florida, which had confirmed the grant to John Forbes, reversed.
    ON appeal from the Superior Court of East Florida.
    The executor of John Forbes, on the 20th of May, 1S29, presented a petition to the Superior Court for the Eastern District of Florida, claiming ten thousand acres of land, seven thousand of which were surveyed on the waters of “ Little St. -Marys river,” in the then district of Nassau, in East Florida; the other tract, being three thousand acres, was alleged to be situated on “ Cabbage Swamp,” also in East Florida.
    The 'petition stated, that the grant for the land was made by Governor Kindeian, in lieu of fifteen thousand acres which had been surrendered by John Forbes to the King of Spain.
    The petition contained the “ Memorial for grant,” wiiich was presented on the 27th July, 1814, to Governor Kindeian, by John Forbes. It was with the proceedings, and as follows:
    His Excellency the .Governor :
    I, Don Juan Forbes, partner of the firm of Juan Forbes and Company, successors of Panton, Leslie, and .Company, merchant of this province, with the greatest respect, appears before, your' excellency, and says,-that the said, firm of Panton, Leslie, and Company obtained, in the year one thousand seven hundred and ninety-nine, a grant of fifteen thousand.acres of vacant lands in the district of St. John, in order to employ their slaves in the agriculture and for grazing their cattle, as is seen by the certificate annexed; but after a short time, they were under the necessity to abandon them, as being of an inferior quality, the samé thing happened to which, whieh frequently happens-in this province, where the planter does not every time succeed in his choice of land, which he perceives only when a sorrowful experience shows him his error; and as it has been for many preceding years that the government, in attention to similar misfortunes, and to the expenditures and losses which have been incurred, has had the goodness to permit the taking up other vacant lands, provided the prior grant be abandoned. Finding myself situated in the same case, • and wishing to establish a rice plantation, which production we have beén, until the present time, under the necessity to import from foreign parts: I, from this moment, abandon the said fifteen thousand acres of land in behalf of his majesty, (whom may God have in his holy keeping,) supplicating him to admit it, and in lieu thereof, to grant me an equivalent in the district of Nassau river. Therefore, I supplicate your excellency, be pleased to order that my former abandonment be received, and, in consequence, that ten thousand acres be granted to me, in said district of Nassau river; the survey of which I will produce, as soon as the tranquillity of the province enables me to execute it.
    Which favour, &c.
    Juan Forbes.
    On the 27th July, 1814, Governor Kindelan ordered, on the petition, “ let the Comptroller inform on the subject.”
    The Comptroller reported, on the 28tli July, 1814, that— “Whereas, in this province, lands are distributed gratis, no record has been entered in the Comptroller’s office, of lands so given, nor to whom given, for which reason it is not known what lands have been given, and what remain vacant.. Therefore nothing can be said on the subject about which information is required: it appears, however, that it is useful to promote the culture of rice, to which, as the interested party alleges, the lands granted to him the seventh of August, 'one thousand seven hundred and ninety-nine, for the express purpose of pasturage, as appears by the annexed certificate of the then notary of government, Juan de Pierra, are not adapted.”
    On the same day, Governor Kindelan made the following “grant,” by
    DECREE.
    St. Augustine, on the twenty-eighth of July, one thousand eight hundred and .fourteen. It is permitted to this interested party to give his formal abandonment of the fifteen thousand acres of land, comprehended in the document annexed to the petition, and in lieu of them the ten thousand are granted to him, without prejudice to a third party, for the objects solicited, in the district or bank of the river Nassau; and in consequence, let the corresponding- certificate be issued in his behalf from the secretary’s office, in. order that it may serve him as a title in form, and it will be the duty of the party to produce the plat and demarcations in the proper time, and let the expedient be registered in the secretary’s office.
    Kindelan.
    On'the 23d October, 1816, George J. F. Clark, “the Surveyor-General,”:, certified that he had made “a survey” of seven thousand acres at the head of the river Little St. Mary’s, or St. Mary’s river, and annexed “a plat” of the same to his.certificate of survey, which, the certificate states, he “ keeps in the register of surveys under his charge.”
    On-the 20th October, 1816, George J. F. Clarke certified that he had made a survey of three thousand acres “ in Cabbage Swamp, in part of ten thousand acres,” granted to John Forbes, in absolute property, and annexed “ a plat” of the same to his certificate, as Surveyor-General, and stated “ that he keeps the same in the register of surveys under his charge.”
    After evidence had been taken on. behalf of the petitioner and of the United States, the Court confirmed the claim of the petitioner to the extent for the number of acres, and at the place, as in the memorial of the said John Forbes, and the decree of the Governor thereon, is set forth, to wit: “Ten thousand acres of land in the district or bank of the river Nassau.”
    The United States prosecuted this appeal.
    The case was argued by Mr. Gilpin, Attorney-General, for the appellants; and by Mr. Downing, for the appellees.
    Mr. Gilpin, the Attorney-General, for the United States.
    In this case, the Superior Court of East Florida made a decree in favour of the defendants in error, declaring their title to “ ten thousand acres of land in the district or bank of Nassau river,” to be valid, under the eighth article of.the treaty between Spain and the United States, ratified on the 22d'February, 1821, That title is founded on an alleged grant to Juan Forbes, by Governor Kindelan, dated 28th July, 1814, of “ten thousand acres in, the district or bank of the river Nassau, for the objects solicited” in the memorial of the applicant; it being, says the grant-, “ the duty of the party to produce the plat and demarcations in the proper time.” The memorial states the wish of Forbes to be permitted to abandon a previous grant of fifteen thousand acres of vacant land, in the district of St. John, on account of its bad quality, and to receive, in lieu of it, as he.is desirous “to establish a rice plantation,” these ten thousand acres in the district, of Nassau river,” the survey of which .he promises to produce, as soon as the tranquillity of the province enables him to execute it.”

      The evidence of the claimants was a certificate of Aguilar, the governor’s secretary, that a copy of the “ expediente,” or record of the memorial and grant, had been given to the interested party; a certificate, dated 20th October, 1816, by Clarke, the Surveyor-Ceneral, that he had surveyed “for Don Juan Forbes,three thousand acres in Cabbage Swamp, in part of ten thousand acres granted to him by the government;” another certificate, dated 23d. October, 1816, by Clarke, that he had surveyed folium v“ seven thousand acres at the. head of the river Little St. Mary’s, being the complement of ten thousand acres granted to him by the government;” and a deposition of Sophia Fleming, in which she says she “has heard that Nassau river and the Little St. Mary’s are near to each other; that she does not know what cjistrict was called Nassau; and that she does not know the distance from Nassau river to Little St. Mary’s.”
    It does not appear that the District Attorney excepted, in the Court below to the evidence of the grant; but, judging from the case as now presented in the record, it may be doubted whether the certificate of the governor’s secretary was such a one, or was sustained by such corroborative testimony, as would make it sufficient evidence of title, according to the decision of this Court, in the case of the United States v. Wiggins, 14 Peters, 348. In that case, the Secretary certified, on the day of the grant, that “ the preceding copy is faithfully drawn from the original, which exists in the Secretary’s office, under my charge;” in the present certificate, there is no date, and no averment either that the particular record is a true copy, or that the original does or ever did exist in the Secretary’s office. In that case, the corroborative testimony, on which the Court chiefly relied, was a survey in strict conformity to the grant, and referring ,to its date; in the present, the two surveys agree with the grant in nothing but the quantity ; they differ as to the location, and they make no reference to the date.
    It is submitted, however, that even if the grant was made by Governor Kindelan, yet Forbes derived no valid title under it, which'the Court below was authorized to confirm. Fie solicited, in his memorial, a grant of;ten thousand acres in the district of Nassau river, of which he was to produce a survey; and it was for the purpose of establishing a rice plantation. The grant was made “ for the objects solicited,” and under the duty imposed upon him “to produce the plat.and demarcations in the proper time.” There is no proof either that the land was surveyed, marked out, and located according to the grant; or that the conditions of cultivation and settlement were complied with.
    I. The grant was made by the Governor,' in general terms, as to the district in which the petitioner was to locate the tract conceded to him. The quantity was prescribed, and the district; the particular locality was to be ascertained by the survey which was to be made “ within the proper time ;” until that should be done, it was in fact but a mere order of survey. The eighth section of the regulations of Governor White, (2 White’s New Roc. 278,) which were then in existence, establishes the necessity of an immediate and definite survey; the fourth sectiou requires that possession should be taken within six months: of course the survey must have been made and returned within that period. 2 White’s New Rec. 286.- What the general pro visions of the Spanish law thus required, this grant made more imperative, by expressly imposing the same duty. Has it been performed ? No evidence of any survey, agreeing in any respect, with the grant, has been produced. The only evidence of a survey is the two' certificates of Clarke. Of these, it rnight be sufficient to say, that they do not purport to have been made under the authority of this grant, or to have reference' thereto. But supposing that they were intended so to be, they give the claimant no title. They do not accord rvith the grant. They are not an execution of the order of the Governor. In the first place, the grant authorizes the location of a single tract; these surveys call for two distinct tracts, at different places. In the next place, the location is to be “ on the bank of Nassau river:” yet one tract is in Cabbage Swamp, about the locality of which there is no testimony whatever; and the other is on Little St. Mary’s river, about which there is some slight testimony, to the effect, that the witness “ has heard it is near Nassau river.” This is no location in accordance with the grant. To establish a title to these tracts, the claimant, must show that a certificate of survey is equivalent to a grant. He has no better title to them. It is clear, then, that by the Spanish law, the claimant had not perfected his title.

      But it is argued that, under the eighth article of the treaty, (6 Laws of United States, 618, 2 White’s New Rec. 210,) the grant is not void, but may be still' perfected by a survey. To this it is replied, that the provision referred to does not apply to a grant totally void at the date of the treaty; that such was the case in regard to this grant, because the rules of the Spanish law, by force of which alone this land could be severed from the ■royal domain, never were complied with. At the date of the treaty there was no valid grant to the claimant, in existence. But if there had been, subsequent, neglect to comply with the same rules, would have made it void. The treaty, if applicable to such a case, could have extended no farther than to authorize the claimant to perfect his title by a survey, within six months after its date, which he never did.
    These positions are fully warranted by previous decisions of this Court. In the case of the United States v. Clarke, 8 Peters, 46S, there was a grant of sixteen thousand acres at a place described therein. One survey of eight thousand acres was made within the bounds of the grant; two others for the residue, were made elsewhere. “ The grant,” say the Court, “ conveyed the land described in the instrument, and no other.” In the case of the United States v. Huertas, 8 Peters, 491, there were similar surveys, in different parcels, of the number of acres granted; and this Court held “ the claim to be valid to the extent, and agreeably to the boundaries as in the surveys,” which were conformable to the grant, but-invalid as to the rest. In the cases of the United States v. Levy, 8 Peters, 482, and of the United States v. Seton, 10 Peters, 311, the same principle was again affirmed. In the case of the United States v. Sibbald, 10 Peters, 321, the petition contained a clause soliciting permission to locate the quantity asked for, at a different place from that desig-. nated, “ in the event that this situation will not permit the said form,” and the grant accorded to the claimant, “ 'he permission he solicited;” on this ground, the objection, which was taken, that the terms of the grant did not authorize a survey at the place where the party made his location, was not sustained by this Court. In the case of the United States v. Arredondo, 13 Peters, 133, this Court said that the land must be taken as near as might be to where it was granted; that it could not be taken elsewhere; and that the grant gave no right to any equivalent or another location. In that case too, the Court held, that where “ the description, in the petition of the locality of the concession, was too indefinite to enable a survey to be made,” the claimants could “ take nothing under the concession.”
    II. Supposing, however, that the petition, concession, and surveys, are sufficient to give locality to the grant, was the title perfected by the claimant ? ’ It was not. The grant was founded on his petition for land, “ to establish a rice plantationit was given “ for the objects solicited:” they were never accomplished, or attempted. Independent of this condition, in terms, that arising from the Spanish law was equally imperative. This was not an absolute grant in consideration of past or future services; it was conferred for purposes of actual'cultivation and settlement; the conditions of occupation and improvement, of which the performance is necessary, in such cases, to make the title complete, have been heretofore fully discussed, (United States v. Wiggins, 14 Peters, 340;) and the declaration of Saavedra, formally confirmed by Governor Coppinger, (2 White’s New Rec. 284,) that concessions made either to foreigners, or natives, with certificates from' the Governor’s secretary, were of no value or effect, if the lands granted were abandoned, or not cultivated, has been deliberately recognised by this Court. 14 Peters, 351.
    Mr. Downing, for the appellees, contended that the grants of seven thousand acres, and three thousand acres, had been made unconditional, by the Spanish government, on the surrender of fifteen thousand acres which had been granted in another place.
    The land was surveyed on the 23d of October, 1816. He claimed, that by the Florida treaty, by the laws of Congress, and by the decisions of this Court, in similar cases, the grants should be confirmed, and the decision of the Superior Court of Florida should be approved by the Court.
   Mr. Justice Catron

delivered the opinion of the Court.

John Forbes, by his memorial to Governor Kindelan, (without date,) sets forth, that in 1799, there had been granted to Panton, Leslie & Co., for the purpose of agriculture, and for grazing their cattle, fifteen thousand acres of land, in the district of St. Johns, which they were under the necessity of abandoning, as being of an inferior quality: that said John Forbes is one of the firm of John Forbes & Co., successor to Panton, Leslie & Co. And said John Forbes prays to be permitted to abandon the fifteen thousand acres, to the king’s domain; and in lieu thereof, to have granted to him an equivalent in the district of Nassau river, to wit: That ten thousand acres be granted to him in said district of Nassau river, the survey of which he will, produce as soon as the tranquillity of the province enables him to-execute it.

The petition avers the object was to establish a rice plantation.

The petition was referred to the Comptroller, Lopez, for a report thereon, to Governor Kindelan; the Comptroller reports that records of such grants, were not made in his office, and of course he could give no information on the subject; but gives it as his opinion, that the culture of rice should be promoted.

On the 28th of July, 1814, Governor Kindelan permitted the abandonment of the fifteen thousand acres granted in 1799; and in lieu thereof, granted to John Forbes, for the object of cultivating rice, ten thousand acres, in the district, or bank of the river Nassau, and ordered a certificate to issue in the ordinary form, from the Secretary’s office, to serve the party as a title in form; making the duty of said Forbes, to produce the plat and demarcation in proper time.

On the 23d of October, 1816, George F. Clarke, the Surveyor, returned, that he had, as. Surveyor General of East Florida* surveyed and delineated for Don Juan Forbes, seven- thousand acres of land, at the head of the river Little St. Mary’s, or St. Mary river; said land being the complement of ten thousand acres, which were granted to him in absolute property, conformably to the annexed plat.

Previously, on the 20th of October, 1816, said Clarke had surveyed for Forbes, three thousand acres in part of the ten thousand acres granted- to him, conformably to the annexed plot. This survey was in Cabbage Swamp. But no other description of locality appears, either from the certificate or plat. Nor is there any evidence .appearing on the surveys, or by proof, that the lands surveyed lie in the district of, the river Nassau, or on the bank of said river; on the contrary, the seven thousand acre survey is on the river Little St. Mary’s, which a woman, Mrs. Fleming, proves she had heard, was near to.the Nassau. The situation of Cabbage Swamp does not appear from the record.

The decree of Governor Kindelan contemplated that the tract should be included in one survey; as did the petition of Forbes. Neither of the surveys corresponding with the concession, in regard to the district where the survey could alone be made; and being on lands not granted by the Governor of Florida ; the surveys, if confirmed, would be recognised as of themselves appropriations- of the lands, independently of the conces.sion on which they profess to be founded; making them the origin of title, and assuming that the surveyor had the power to grant. This Court has on all occasions holden, when the question has been presented, that,the survey must be for the land granted by the proper authority. The United States v. Clarke, 8 Peters, 468. The United States v. Huertas, 9 Peters, 171.

■The Courts of justice can only .adjudge what has been granted ; and declare that the lands granted by the lawful authorities of Spain,- are separated from the public domain: but where the land is expressly granted at one place, they hate no power by a decree to grant an equivalent at another place, and thereby sanction an abandonment of the grant made by the Spanish authorities. All the public domain of Spain was ceded to this government by the treaty of cession, and the title in fee to the same vested in the United States; from the lands thus acquired, was excepted individual property. First, the paper title to such private property^ it is our duty to investigate and ascertain, and by our decisions to establish; and secondly, it is our duty to ascertain, and cause., to be surveyed ""and marked by definite boundaries, the lands granted: and here the duties of the Courts end. They have no authority to divest the title of the United States, and vest in a claimant, however' just his claim may be to an.equivalent,. These principles seem to be self-evident; and their assertion not’ called for, because of their undoubted character : yet the consequences flowing from them, will be found to govern a class of cases of large magnitude, now-in the course-of adjudication. The one before us is of that class. The concession or grant, (for the terms are synonymous, in regard to the Spanish titles of Florida,) to Juan Forbes, was for ten thousand acres in the district, or bank, of the river Nassau, with an order, that the concession should serve him as a title in form; “and it will be the duty o'f the party to produce the plat and demarcations, in the proper time,” says the decree of the Spanish govern- or. That this concession. is fpunded on a past consideration; that is, on the surrender of other fifte.en thousand acres -previously granted to Panton, Leslie, and Company, admits of no. doubt; still, the question recurs, what spot of land was granted? Of the district of Nassau we know nothing, as there is no proof of the existence of such a section of country in the record; unless we infer that it is in the range of country through which the river Nassau runs. But the description is more precise, and-authorizes the grantee to take the land on the bank of this river. That there is such a river as the Nassau, in East Florida, lying south of the St. Mary’s river, we know from the general geography of the country; it is, however, a river of considerable length; the land might have been located on either bank, from its commencement as a river, to its mouth at the ocean. No survey of the land, granted was ever made; the duty imposed upon the grantee to produce the plat and demarcations, in the proper time, was never performed. This was a condition he assumed upon himself; the execution and return of the survey to the proper office, in such case, could only sever the land granted from the public domain. Before, the grantee had an equal right to any lands on either bank of. the river Nassau. The concession was made in 1814; and-how long the party had the right to survey and make the demarcation, it is needless to inquire, as it has never been done. We apprehend, however, ■within six months after the ratification of the treaty, by the contracting parties respectively, was the latest date at which the .condition to survey could have been complied with: on this' point, however, no definite and conclusive opinion is called for, and none is given. Thus situated, the claim was presented, to the Superior Court of Florida for confirmation. The Court pronounced the claim valid, that is, that the concession had been made by the lawful authorities of Spain; arid it was decreed, that the lands “be confirmed at the place, as in the memorial of the said John Forbes, and the decree of the Governor thereon set forth, to wit: ten thousand acres of land in the district, or bank of the river Nassau.” From this decree, the United States appealed; and in the review of which decree, we are compelled to find the land granted, or to reject the claim, because we cannot identify the land. If this cannot be done, we have no power to decree an equivalent out of the lands of the United States; for the reason, that the Courts have no authority to divest the title of the government,, and to vest it in Forbes’s heirs. No particular land having been severed from the public domain by John Forbes, his was the familiar case of one having a claim on a large section of country,'unlocated; in its nature, and effect, as it regards-the government, not differing from the holder of a land warrant in the American states, which might be located by survey at any- spot that was not appropriated by an individual title, in a certain district of country. In such a case the government has ever been deemed to hold the fee unaffected by a vested equitable interest, until the location was made according to the laws of the particular country. So here, Forbes acquired no title to any land that can be recognised by a Court of Justice, and his claim must be pronounced void for want of identity; and because it is impossible to settle the identity, and locate the land by a judicial decree.

Although this question has not been directly presented to the Court for decision, yet it did arise, and received our careful consideration, in the cause of The United States v. Arredondo, 6 Peters, 691. In that case, thirty thousand acres had been granted p Arredondo, in 1817, designated to lie on Alligator creek, a branch of the Suwanee, to begin about seven miles west of Alligatortown; situated about forty miles north-westwardly from Paynestown, and' about eighty miles from Suena Vesta; which parts.of the country are known under the name of Alachua. The Court say — “ the land must be. taken as near as may be as it was granted, and cannot be taken elsewhere. It (the grant) gives no right'to an equivalent or another location; if it cannot be found at; of near, the place designated; an equivalent is not secured by the concession in terms, nor is it by the customs or usages of Spain, nor by any law or ordinance of Spain. And it is proper here to remark, that the acts of Congress for ascertaining claims and titles to .land in Florida, whilst they recognise patents, grants, concessions, or orders of survey, as evidence of title when lawfully made, do not permit, in case of a . deficiency in the quantity from any cause whatever; the survey to be extended on. other lands.” Detailed and careful instructions are then given how the Court below shall proceed to identify the land; and how it shall be surveyed when the-identity is established: and then the Court declare : “ If, however, neither Alligator creek can be found, nor any' creek to the west of Alligatortown, entering into the Suwanee within seven miles distance from the town, or a reasonable distance therefrom; and if Alligatortown cannot be found; then, it is the opinion of this Court,'that the remaining description in the petition, of.the locality of the concession, is too indefinite to enable a survey to be made; and that the appellees can take nothing under the concession.” Subject to this opinion, and a mandate in conformity-to it, the cause was remanded to the Superior Court of. East Florida, for further proceedings, in execution of. the decree and instructions of this Court; and -where it is probably now. pending, We think the principle adopted unquestionably correct, and which rules this casé.

The petition of Juan Forbes, and the concession-of Governor. Kindelan, are authenticated and were read in evidence, by the following certificate:

“On the date, a copy of this expediente was given to the interested party above. Aguilar.”

We feel strongly impressed with the deficiency; and unsatisfactory character of the foregoing 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 bé 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.

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. Whéreupon, 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.


source: Caselaw Access Project

license: Public Domain

text:
    The United States, Plaintiffs in error, v. Gordon D. Boyd, and others, Defendants in error.
    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 executéd 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 h.e .was bound to do by tew. 2d. That Boyd, bn the 27th day of December, 1836, and at divers days between that and tae 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, ,&c.
    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.
    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 causes of demurrer. A case having come to the Supreme Court, by writ of error from the District of Mississippi, the ’ modes 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 demurrer, in favour 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.
    IN error to the Circuit Court' of the United States for the Southern .District of Mississippi.
    Gordon D. Boyd was duly appointed a 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 tlie 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 the 27th of December, 1836, that therefore, “ if the said 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.”
    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, fróm time to time, and at 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 apd’ 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 September, 1837, while he was Receiver, and as such Receiver, received divers sums of the public moneys, amounting in the' whole to fifty-nine thousand six hundred and twenty-two dollars 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 office.
    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 his 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 Receiver, 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 insufficient.
    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, Attorney General for the United States. Mr. Davis, in behalf of Mr. Cocke, submitted a printed argument for the defendants.
    For the United States, Mr. Gilpin contended, that the breaches of the condition of the bond, by the principal obligor, are well and sufficiently set forth in the replication; and that the demurrer ought not to have beén sustained.
    Mr. Gilpin, Attorney General, for the United States.
    On the 27th of December, 1836, the defendant, Boyd, was ap- ' ■pointed a Receiver of Public Moneys, at Columbus, in Mississippi, for four years. On the 15th of June, 1837, and while ■ 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 thé government, in 1789, the genéral duty of “ superintending the collection of the reyenue,” and of “ executing such services relating to the sale of the public lands, as might be required by law,” (l 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? purchase money, within thirty days, to the Treasurer of the United States directly, or “ to a person appointed by' the President, to attend at the place of sale and receive, itthe residue was to be paid directly to the Treasurer. On the 10th of May, J.800, (1 Story’s Laws, 783,) land offices were created at four places, Cincinnatti, Chilicothe, Marietta, and Steubenville; and it was directed thát 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 de-.. volved 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 salé, to the Recejver, or to the Treasurer of the United States. On the 3d of March, 1833, (4 Story’s Laws, 2349,) 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 designate; and to appoint a Receiver of Public Moneys, for that office, who was to give bond according to law, and who was to perform similar 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, 2499,) the general land office was reorganized; 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 b,y 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 “faith-' fully to execute and discharge the duties of his office,” he must pay over “ the public money in his hands, exceeding 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 30th 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 twenty-two 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 the 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:
    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 refused to pay it over to the United States.
    2. That, between the time of his appointment and the 30th of September, he had réceiyed 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 completelv after 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 éxpress words of the law, and the regulations of the Treasury Department; they make no distinction in regard to the money received; all is to be paid over; if it was so received, as to have made it a breach óf dpty 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; a neglect of it was a breach of the condition of the bond on his part; is there any thing 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 óf 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 handswill it be contended 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, 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. .
    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 required it to be paid over before thedate 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 qf the bond. We have a right, under this demurrer, to assume that this- money was all received within thirty days preceding the 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 offi cial duty; but it is the final neglect to pay over'the money which constitutes the great breach: and this does not become less ei breach because there have been other and previous neglects.
    But, in the third place,If we admit that- the 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 1st 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 dufies shall be faithfully performed ? That a bond, voluntarily, entered into, to guarantee the performance of tfll duties from a day expressly stipulated in the bond, though anterior to its date, to another day also stipulated — 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 favourable 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 daté 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 wus a neglect on the part of the obligees. To say nothing of the well recognised 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 Wheaton, 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 had 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' moneyá 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 ¿hiring 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 monev received actually remains in his hands at that date.
    The judicial decisions of the Courts of common law, as well as of this Coprt, 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 gbverned its construction, and that the condition must be construed by it In the case of Newman », Newman, 4 Maulé and Sel. 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 Has-sell v. L&ng, 2 Maulé and Sel;'363, the obligor was a churchwarden, 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 súch a security that the duties that were actually collected should not be lost.” In the case of Curling v. Chalklen, 3 Maulé and Sel. 508, a collector of poor rates gave bond “ that he should render to the churchwardens at, &c., and as often' thereafter as-required, a true account of the moneys so collected, &c., 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 Ellen - borough said', “I*think it is clear, from the act of 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. .and 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, &c. Abbot, C. 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 coextensive with the duties tó be performed.”
    In the case of Dawes v. Edgs, 3 Mass. 177, an administrator gave bond to render, &c., of the goods,' &c., which have or shall come to his hands. . It was objected by the surety that these words did not imply a retrospective meaning, but ¿he Court said that the bond clearly covered what came into J-he administrator’s hand's before as well as after its date. In Roth ty Miller, 15 Ser. and 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 favourably for those for whose benefit they are. made, as every contract is. In the case of the Dedham Bank v. Chickeriog 3 Rckering, 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 office, they could not be restrained to a single year, although it had been customary to re-elect 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 w.as 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 merely for the officer performing his duties in good faith. In the case of Miller v. Stewart, 9 Wheat. 680, the defendant was surety in a bond conditioned that Ustick “ had faithfully discharged, and Should continue to discharge the duties • of his appointment,” as a Collector of Infernal Revenue; and it was sought to charge him with duties arising under a subsequent appointment. This the Court refused to sanction; and thus laid down the obligations of a surety: “ To the extent^ and in the manner, and under the circumstances pointed out in his obligation, the surety is liable, but no further. He has a right to stand upon..the very terms of his contract.” It is evident from the terms of the bond, that it was dated after the appointment, yet the surety voluntarily made himself liable during the whole of that appointment; and, as in the case of Hassell v. Long, the Court, though they would not extend his liability further, asserted its existence fully to that extent. In' the case of the United States v. Kirkpatrick, 9 Wheat.- 720, the defendant was surety in a bond dated 4th of December, 1813; the principal obligor was commissioned on the 13th of November; the Court said “the; bond in question was given with express reference .to this commission, and its obligatory force was, of Course, confined to acts done while that colnmission had a legal continuance.” In the case o”f the United States v. Nicholl,.12 Wheat. 505, the defendant was surety in a bond, dated 22d of February, 1819, for the faithful performance by Robert Swartwout, of the duties of his office of Navy Agent, which commenced on the 30th of November, 1818, and qqntinued for four years. The Court below had charged the jury, that the defendant was not liable fo.r a deficiency of public money reported on by the accounting officers, subsequent'to the expiration of his office. On this, the Supreme Court-say, that'if by this “it was intended to convey the idea, that he was not responsible for money that came into'S wartwout’s .hands while in office, but w'hich he afterwards failed to account. for and pay over, it was clearly incorrect.” In the case of Farrar v. The United States, 5 Peters, 373, the plaintiff was the surety of Rector, the Surveyor General, in a bond, dated 17th of August, 1823, conditioned that he “ shall faithfully discharge the duties of his office.” He was appointed- on the 13th of June, 1823, and had received certain public money before the date of his bond,-and some even before the date of his commission. This money he failed to pay over, and the sureties denied their liability for such failure. The Supreme Court said, “ that for any sums paid to Rector, prior to the execution of his bond, there is but one ground on which the' sureties could be held answerable, and 'that is, on the assumption that he still held the money in bank, or otherwise. If still in his hands, he was, up to that time, a bailee of the government': but upon the contrary hypothesis, he had become a defaulter, and his defence was already consummated.” They go on to- say,- referring to the latter state of the case, that then, “ if intended to cover past dereliction, the bond should have been made retrospective in its language.” In the case of The< United States v. Tibgey, 5 Peters; 128, the question arose whether or not, a bond voluntarily entered into, might not be made by the sureties with the United States, as fully as it might be with an individual: and this Court expressly, recognised the binding-authority of such a contract on the sureties.
    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 tar back.as the 23d of December; the money was in his hands at the date of the bond.
    An objection of á 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 Mississippi, it could not be noticed by the Court. Revised Code of Miss. 614.
    . 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.
    By an inspection of the bond, it appears that the said Gordon D. Boyd was appointed Receiver on the 27th day of December, 1836; but 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. B.oyd 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.
    To this plea the plaintiffs replied, and'assigned two breaches of the condition to the Said bond, to wit:
    1st That the said Gordon D. Boyd did not 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 twenty-two 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 boupd to do by Taw, and the duties of his said office of Receiver.
    2d. 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 rvit: 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 oi tfte said Gordon D. Boyd, as Receiver as aforesaid, on the. 30th day of September, 1837, to wit: at-ihe 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.
    ■ To this.replication the defendants demurred; and, for', causes of demurrer, stated the following, to wit:
    1st, • The first breach does not state, of 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 sajd bond.
    2d; The first breach does not state or show 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 J>. Boyd received the said sum of money mentioned in the said second breach.
    ,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, judgment for the defendants. To reverse this 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 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 the bond are concerned, there is, perhaps, no difference, in point of law^ between the liability of Boyd and the liability of the sureties. It may bo said, that it is the contract of both, and binds both, or neither. United States v. Orr’s adm’s, 8 Peters’s Rep, 39.9.
    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. 6S0.
    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 hi.s contract. Ibid.
    2d. In a cas,e like thh 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 mattci of right, in point of law, on which the plaintiffs seek a recovery. It should support the declaration, and be at the same time responsive 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 defendants’ 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 question.
    hey have failed, and refused fairly to respond- to the plea; and from any thing 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 monéy 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 osf 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 dav 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 sh^ll abide and remain in full force and virtue.”

The defendants craved oyer of the bond, condition, &c.; 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, 1837j 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, 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,” &c.

Rector had been appointed and commissioned as Surveyor on the 20th February, 1.823. 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 retrospective in its language. The sureties have not Undertaken against his past misconduct.”

Brit the failure of the Receiver to account, 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. $uch is the settled doctrine of this .Court, as holden in The United States v. Kirkpatrick, 9 Weaton. The United States v. Vanzant, 11 Wheaton; and The United States v. Nicholl, 12 Wheaton, 509.

It follows, the averment in-the replicatión, that Boyd, from the 27th of December, 1836, to the 30th of September, 1837, had received on behalf of the United States, the sum of fifty-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 hie 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 demurrer.

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 Wheaton, 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 receive 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 Mississippi; and the modes of proceeding of that- state govern the pleadings. By the act of 1822, see. 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 assigned, is not alleged as a special cause of demurrer, and therefore could not have been notioed 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 additional pleadings, or an amendment of the present, ones, according to the rules and practice of the Circuit Court,; and on such terms as it may impose.

We order that the judgment be reversed, the demurrer overruled; ánd that judgment be entered by the Circuit Court, for the penalty of. the bond in favour 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 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 judginentof 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 fav.our of the plaintiif, 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.


author: Mr. Justice Story

text:
    Amis v. Pearle.
    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 prqsecute the same. The counsel for the defendant in error produced the original writ of error, signed by the clerk of the Circuit Court, and a citation signed by the judges 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 the 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. ■
    ON a motion on behalf of the defendant in error, to docket and dismiss the suit, under the forty-third rule of the Court.
   Mr. Justice Story

delivered the opinion of the Court.

In this case a motion has beén' 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 cáse 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 judgé of the Court, is produced by the defendant in error, and is now before us.' Under these circumstances, we are of opinion that the substance of the rule is complied with. The certificate of the clerk is bpt prima facie evidence, of the issuing and allowance of the writ of. error: whereas, the production of the writ of error, with the citation, is the highest evidence of the fact, that the writ of error has been duly sued-out and allowed. Under these-circumstances, the Court,are of opinion that the' motion ought to be granted. In point of fact, this same question.came before this Court, in the case of Ward and others v. The Commonwealth Bank of Kentucky, at January 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.


author: Mr. Chief Justice Taney

text:
    Martin A. Lea, Monroe Rabetaille, and Charles G. Langdon, Appellants v. Enoch S. Kelly, Appellee.
    A judgment was entered on a promissory note drawn by Kelly and others in favour of Lea and others, in the Circuit Court of Alabama. Afterwards, Kelly, the appellee, filed a'bill on the equity side of the Court, fot 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: arid afterwards, on the appearance of two of the plaintiffs in the suit at law, the Circuit Court decreed, that, on the condition that'the complainant, Kelly, appear and' plead ,to the merits of the case, waiving the question of jurisdiction, and pay costs of the suit at law, and the proceedings iniquity, 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. Heíd, that the decree of the Cirfcuit Court was merely interlocutory; and was not a final decree for which an appeal could be taken.
    APPEAL from the Circuit Court of the United 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 whfch the appeal has been taken, is not a final decree, within the mean: ing 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 appellants against him and two other persons named in the proceedings, upon a promissory note signed by them, and purporting to be for the sum of five thousand 'dollars, upon which judgment and execution had issued.

The complainant charges in his bill, that the claim-of the appellants against him is fraudulent, and he sets out fully me particular facts upon which he relies to prove the fraud; and avers that no process, save the execution, was served upon him in the suit at 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 any one 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 cíaim against the appellee was fair aii'd just. '

It does not appear that Rafietaille, the other defendant, answered the bill; and, in this state, of the proceedings, the Circuit Court, at April term, 1839, passed the following decree:—

“Thisday came the parties by their solicitors, 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 proceedings in equity, a new trial be awarded to the said complainant.”

It is from this order or decree that the present appéal has been taken: and it is evident that the order is merely interlocutory; and that no final decre'e has been passed in the case. The bill has not been dismissed, nor has the injunction been made perpetual. .The new trial at law appears to have been directed tó inform the conscience of the Court; andthe 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.