Page images
PDF
EPUB

v. GILES

U. STATES pointed one Thomas Jenkins his deputy, &c. to execute the said office from the 24th of June next coming, for the term of six months next following, now if the said Tho& OTHERS. mas Jenkins shall, for and during all the time that he shall continue deputy post-master, &c. execute all the duties," &c. The breach assigned was in not paying over monies received by Jenkins, after the expiration of the term of six months, and upon demurrer it was held that the Defendant was only bound for monies received within the six months. So in the case of Barker, executor of Pyott v. Parker, 1. T. R. 287, the condition of the bond was that one J. H. should pay to E. Pyott, his executors or administrators, all such monies as he should receive belonging to the said E. Pyott, his executors or administrators; but it was held that the Defendant was not liable for monies received by J. H. belonging to the execu tors of Pyott in their own right. So also in the case of the Liverpool Waterworks company v. Atkinson, 6 East. 507, the condition of the bond, reciting that the Defendant had agreed with the Plaintiffs, to collect their revenues from time to time for twelve months," and afterwards stipulating that at all times thereafter, during "the continuance of such, his employment, and for so long

as he should continue to be employed," he would justly account, &c. was held to confine the obligation to the period of twelve months mentioned in the recital. A similar decision was given by the Supreme Court of Pennsylvania, in the case of the Commonwealth v. Benton, 4 Dall. 282, upon a sheriff's bond.

5. The payment to the attorney of the United States, which is found to have been in conformity with the usage in New York, and with the assent and approbation of the comptroller of the treasury, is a good payment to the United States.

The United States are represented by their attorney, ás to every thing relative to actions, in the same manner as a common person is represented by his attorney; an attorney at law has a right, within the year and day after judgment, to receive payment of the debt, and to enter satisfaction of the judgment upon the record. Doug. 623, Fates v. Freckleton. 1 Com. Dig. tit. Attorney, B. 10. The comptroller is the agent of the United

States for the purpose of assenting, and his assent binds U. STATES the United States.

v.

GILES

The Defendant, Giles, received 3,763 dollars and 98 & OTHERS. cents, before the date of the bond, and 1,683 dollars and 52 cents, after that date and before his removal from office, making together the sum of 5,447 dollars and 50 cents. The payment of the sum of 6,238 dollars and 35 cents to Mr. Livingston, not having been specifically appropriated to the payment of any particular part of the amount due from Giles, we contend ought to be applied to the payment of that part of the money which he first received, which will discharge all that the Defendants can be liable for upon their bond.

On behalf of the United States, it was said,

1. As to the money received by Giles before the date of the bond, it remained in his hand at the time the bond was executed. It was as much his duty to pay it over afterwards as it was before; and by not paying it over he was guilty of default for which his sureties are liable. Besides the writ was not returnable until after the date of the bond, and there was no breach of his duty until after the writ was returnable when he ought to have had the money in Court to render to the United States.

2. As to the marshal's right to retain money due to him by the U. States, it was said, that the claim never had been submitted to the accounting officers of the treasury, agreably to the provisions of the act of congress of the 3d of March, 1797, vol. 4, p. 423, § 4, by which it is enacted, "that in suits between the United States and individuals, "no claim for a credit shall be admitted upon trial, but "such as shall appear to have been presented to the ac"counting officers of the treasury, for their examination, "and by them disallowed in whole or in part," &c. If a marshal might retain money to answer his own claims, there would be no necessity of an appropriation by law; and it would subject the whole revenues of the government to the caprice of juries. The jury had no right to find a debt due from the United States. It was a matter coram non judice, unless it had been first submitted to the accounting officers of the treasury,

U. STATES v.

GILES

A Defendant cannot set off a debt, if he could not maintain a suit for it. 4 Dall. 303. Commonwealth v. Blacklock. This Defendant could not maintain a suit & OTHERS. against the United States. To give him the benefit of the set off would be a violation of the prerogative of the United States.

THE COURT stopped the counsel for the United States, upon this point, saying they were satisfied.

3. As to the delivery of the 14 bonds to the attorney of the United States, it was said, that they were made payable to the marshal for the time being, and ought to have been delivered to his successor. That in taking the bonds he acted officially. He could only sell as marshal whether he sold for cash or on credit. A Plaintiff may wave a rule intended for his benefit and authorize a marshal to sell on credit. He had no authority to sell as agent, nor had he any orders to deliver the bonds to the attorney. The assent of the comptroller is not sufficiently found, for the jurors find a fact inconsistent with such assent, viz. that the comptroller ordered him to deliver them to his successor. The violation of his duty in not delivering them to his successor was prior to his delivery of them to the attorney.

4. As to the question whether the sureties in this bond are liable for the money received by Giles after the revocation of his commission, it was said that by the 28th section of the judiciary act, vol. 1, p. 67, "every "marshal, when removed from office, shall have power, "notwithstanding, to execute all such precepts as may "be in his hands at the time of such removal," and in case of the death of any marshal his deputies shall continue in office, unless otherwise specially removed, and shall execute the same in the name of the deceased, until another marshal shall be appointed and sworn; and the defaults or misfeasances in office of such deputies in the mean time, as well as before, shall be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them.

Here a liability is imposed upon the sureties which is not expressed in the condition of the bond.

v. GILES

The words in the condition, "during his continuance U. STATES "in the said office," mean, so long as he shall have authority to act by virtue of the said office. So far as regarded the execution and return of the writ of fieri facias, & OTHERS. against John Lamb, his authority to act by virtue of his office continued after the revocation of his commission. The writ was not completely executed until it was rèturned fully satisfied. Quoad hoc he still continued in office within the meaning and intention of the bond. In all the cases cited by the opposite counsel, the time was limited by months, and not by such a general expression as this. The act of congress contemplates a course of duty and intended that the bond should cover all his responsibility, and no doubt the parties intended to give such a bond as the act required. Congress could not have intended that upon the removal of a marshal, perhaps for wasting the public money, or for insolvency, he should still go on to collect other monies, after his sureties upon his official bond should be discharged by his removal from office.

5. As to the payment of the sum of 6,238 dollars and 35 cents, to the attorney of the United States, it was said, that the district attorney, as such, has no authority to receive the public money collected by the marshal. In common cases the authority of an attorney at law arises from presumption, and is limited to a year and day after judgment, in which time, if execution be not taken out, the judgment is presumed to be satisfied. But as to the attorney for a government no such presumption of authority arises. The United States is considered as a moral person only, and can only act by proper organs legally appointed; and their acts can bind the United States only so far as they act within the powers given them by law. In no other government does the law officer receive the public money without the order of the treasury. The treasury department is to manage the whole fiscal concerns of the nation. There is no exception in favor of the attorney of the United States. His duty is only to support the claims of the United States. There is no necessity that such a power should be lodged in his hands. He gives no security. Why should the money be taken out of the hands of a responsible officer and given to one not responsible?

E. STATES

But this payment is claimed as a credit, and it is a sufficient answer, to say, that it has never been submit-ed to the accounting officers of the treasury. The jury & OTHERS. had no right to find such a credit, or even to act upon it.

GILES

But if it is to be considered as a payment to the United States, still it does not appear that at the time of payment it was applied to the disharge of any particular part of the money which Giles had received. The United States have therefore a right now to apply it to such part as they please, and this Court will make such application of it as will be most beneficial to the United States. That is to say, if the Court shall be of opinion that the sureties are not liable for the money received by Giles after his removal from office, they will apply this payment to that part of the debt, and leave the sureties liable for the part received while he was in office.

[ocr errors]

March 7th. Absent....TODD, J.

LIVINGSTON, J. delivered the opinion of the Court as follows:

This is a joint action of debt on a bond dated the 9th of January, 1801, in the penalty of 20,000 dollars,

The condition of the bond is as follows: Whereas the above bound Aquila Giles hath been appointed the marshal in and for the New York district, in pursuance of an act, entitled "an act to establish the judicial Courts of the United States," now, the condition of the preceding obligation is such, that if the said A. G. shall, by himself and his deputies, faithfully execute all lawful precepts directed to the marshal of the said district under the authority of the United States and true returns make, and in all things well and truly and without malice or partiality perform the duties of the office of marshal in and for the said district of New York during his continuance in the said office, and take only his lawful fees, then the obligation to be void, &c.

General performance is pleaded by the Defendants, to which a replication is filed assigning six breaches, to all of which there was a rejoinder, sur-rejoinder and issue

« PreviousContinue »