John Catron

“ It is true, that a surety may not be bound always to see new duties performed, which are imposed on their principal after the date of the bond; but these are not of that character. Let us suppose, that this bond, executed on the 15th of June, had contained, in terms, this condition: 'that the said Boyd shall faithfully perform his duty as a receiver, by paying over and depositing all public money now in his hands;' will it be contended, that the sureties would not then have been answerable? ”

“ 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 be said, that it is the contract of both, and binds both or neither. United States v. Jones, 8 Pet. 399. 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. ”

“ On the 25th of April 1812 (Ibid. 716) , the general land-office was established, and all the powers and duties of the secretary of the treasury, relative to the public lands, were devolved upon the commissioner; to whom also, all returns from the land-offices were directed to be made, and by whom all accounts from them were to be settled. On the 24th of April 1820 (3 Ibid. 566) , the law was passed, requiring the whole purchase-money to be paid on the day of sale, to the receiver, or to the treasurer of the United States. ”

“ That a bond, voluntarily entered into, to guaranty the performance of all 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 favorable to the sureties than necessarily results from the assignment of breaches to which they demur. ”

“ Or, suppose, that a receiver should collect $9000 before the date of the bond, and $1000 after; the law requires him to deposit only when he has $10,000; 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 ”

“ In a case like the present, the pleading justly commands our attention. The replication holds the important position of the declaration, and should state the facts upon which the plaintiffs rely for a recovery, with the same certainty as would be required in a declaration; a certainty at least equal to the legal effect of the contract declared on. It should show the matter of right, in point of law, on which the plaintiffs seek a recovery. ”

“ But 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 $10,000 had been received during any one month, was no legal defalcation of which the securities can avail themselves. Laches are not imputable to the government. The regulations requiring settlements to be made by its officers at short periods, are designed for the protection of the government, and merely directory to the officers, and form no part of the contract. Such is the settled doctrine of this court, as holden in the United States v. ”

“ 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 $59,622.60, received during the term designated in the bond. ”

“ To this replication, the defendants demurred, for the following causes: 1. 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. 2. ”

“ In the case of Newman v. Newman, 4 Maule & Selw. 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. ”