Rufus Wheeler Peckham

“ We think the evidence was properly excluded, although there was no statute specially providing for the execution of a bond by one occupying the position of Lieut. Howgate. The order of the war department that a bond should be executed was one which the secretary of war had power to make.
It was held in the case of U.S. v. Tingey, 5 Pet. 115, that the United States had a right to take a bond to insure the faithful performance of duty on the part of an individual or officer where such bond was voluntarily given, and was not in violation of any provision of law. ”

“ The government is charged with laches in failing to take proper means of enforcing its demands against Howgate, and in failing to promptly notify the sureties of the fact of his defalcation, and of their liability to respond on that account to the extent of the penalty of the bond. ”

“ As the matter stood, when the bond was returned to Howgate, he was under the same obligation to furnish a proper instrument that he had ever been, and, for all that appears, precisely the same reasons for signing the instrument originally still existed with the sureties at the time when the seals were placed upon the bond. The evidence is strong enough upon which to base the presumption that under these circumstances the seals were placed upon the bond with the consent of the sureties, and the bond returned to the war department properly executed. ”

“ A bond exacted for the sum of $12,000 was very likely demanded in view of the fact that frequent settlements were customary between the officer and the treasury department, and that requisitions were not to be made for any enormous sum at any one time. With such checks upon the receipt and disbursement of public moneys, it might well have been thought that the amount demanded was sufficient. ”

“ There is no claim made that there ever was any other bond than the one put in evidence, nor that the defendants were surprised, or in any way misled, by the difference in the date of the bond from the date alleged in the declaration. ”

“ Marshall, C. J., said that, the plaintiff having declared upon a bond dated the 3d of October, and oyer being prayed, the bond appeared to bear date of the 3d of January preceding. By the oyer the bond was made a part of the declaration. He said there were several pleadings, and among the rest a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. He then said the variance between the date of the bond declared upon and that of the oyer is fatal. ”

“ Decided cases may be found, unquestionably, where it has been held that very slight differences were sufficient to constitute a fatal variance. Just demands were often defeated by such rulings until parliament interfered, in the parent country, to prevent such flagrant injustice. Federal courts have possessed the power from their organization to the present time to amend such imperfections in the pleadings, except in cases of special demurrer set down for hearing, and are directed to give judgment according to law and the right of the cause. ”

“ The condition that he should carefully discharge the duties of the office might, perhaps, be regarded as somewhat vague, on account of the uncertainty as to what constituted all of those duties, but there is neither vagueness nor uncertainty in the other condition above stated. If the first condition were to be held void for uncertainty, there is no valid reason for holding that the second condition is also void, although not at all uncertain. ”

“ After that time, and in compliance with the request of the solicitor of the treasury, the secretary of war sent to the second comptroller of the treasury this statement of the account, together with a copy of the report of the acting chief signal officer, which accompanied it; and the secretary stated that the papers were forwarded to the second comptroller with a view to a restatement of the accounts of Howgate for use in a suit on his bond of April 2, 1878. ”

“ People, 66 Ill. 501, a bond was sued on, while the instrument produced had no seal. It was held that the fact that the instrument contained the statement 'sealed with my seal,' when there was no seal or scroll, did not supply the defect of its absence.
In Barnett v. Abbott, 53 Vt. 120, the instrument, when executed, had no seal, but when delivered to the selectmen it was sealed. The evidence showed that the sureties did not affix the seals themselvers, and in fact authorized no one to affix them to the instrument. ”

“ Otherwise it is the same bond in description as that declared on, with no claim of there being any other bond, and with the proof that the bond in question, although dated on the ___ day of March, was not accepted by the war department until the 2d day of April, 1878, at which time it became a completed instrument, and from which time it took effect. It is plain to be seen that no possible harm or injury could occur to the defendants from disregarding this variance. ”

“ It is necessary to see what this alleged settlement was that is set up by the defendants as a bar to the maintenance of this action. It is seen by reference to paragraph 2394 of the army regulations, which is set forth in the statement of facts, that it was necessary to obtain certificates of nonindebtedness before an officer retiring from the service could obtain final payment of his salary. Immediately upon his resignation being offered, December 7, 1880,-Lieut. Howgate proceeded to obtain the necessary certificates. ”

“ Defendants' counsel offered to prove that some time after he had been assigned to his position the secretary of war, through his chief clerk, directed that Lieut. Howgate, before receiving moneys upon requisitions made by him, should file a bond as particularly stated, and, if he failed to file such bond, that he should be relieved from duty as disbursing officer ”