Bryan v. United States (66 U.S. 140)

Writ of error to the Circuit Court of the United States for the District of Columbia.

The United States brought an action of debt in the Circuit Court against Joseph Bryan, one of the sureties in the efficial bond of Samuel D. King, Surveyor General of California. It appeared that King was commissioned by the President on the 29th of March, 1851, and executed his bond with Bryan and others, as sureties, on the same day. On the 19th of March, 1853, John C. Hays was commissioned as his successor. On the 30th of June, 1853, at San Francisco, Hays gave bond and took the oath. On the 31st of May, 1853, a month before Hays took possession of the office, King wrote to the Commissioner of the Land Office an official letter, in which he admitted that the balance against him on the surveying account, on the 1st of April, was (after deducting what was due him on the salary and contingent account) $13,933 32. But he alleged that payments were made on it to the amount of over $11,000, and that disbursements would be made during that quarter requiring more than the amount in his hands. He stated that by the end of the quarter there would be needed on salary account $10,000; on contingent account $6,500; and for other purposes $3,500; in all $20,000. He then added, that 'the full amounts as above being needed by the time this reaches your office, and long before a remittance could be received, I have been compelled to draw upon you at one day's sight for the said sum of $20,000 in the form enclosed, which please honor.' On the same day he wrote again to the Commissioner: 'To meet balances due me on settlement of my salary and contingent accounts of the first quarter of 1853, and expenditures under both of those heads, and other expenses during the present quarter, I have to request that, one day after sight, a warrant for the sum of $20,000, out of the undermentioned appropriations, may be issued in favor of Charles D. Meigs, cashier of the American Exchange Bank, city of New York, and charged to me as follows, per advice of this date.' Then follows a statement showing that the amount referred to is to pay the balance of the first quarter, and to pay expenditures of the second quarter, ending on the 30th of June, 1853.

On the 4th of July, 1853, in accordance with the request contained in these letters, a requisition was made by the Secretary of the Interior upon the Treasury for three warrants on account of Samuel D. King, Surveyor General, for $3,500, $6,500, and $10,000, on which requisition corresponding Treasury warrants and drafts were issued, payable to the cashier of the American Exchange Bank, of New York. The accounting officers of the Treasury charged him with the whole amount of them. Between the 31st of May and the 30th of June he disbursed the sum of $11,295, for which he received credit in his accounts. Allowing him these credits and charging him with the $20,000 for which he drew in favor of Meigs, the balance is against him, as it also is if the credits and the charge be both stricken out. But allowing the credits without the charge, the balance would be in his favor. In the Circuit Court the defendant insisted that he was not responsible as surety for the $20,000 paid on the requisition in favor of Meigs, dated the 4th of July, 1853, because that was after his principal in the bond had gone out of office, and that he was entitled to credit for all payments made previous to that time. For the United States it was claimed that King had raised the money before he went out of office by getting his drafts on the Government cashed, and had applied the money, or part of it, thus raised, to the payment of the debts due by the Government, and it was unjust to the public that his sureties should be permitted to set off his payments out of that money against the balance previously due from him, while they repudiated the charge. The court instructed the jury as follows:

'If the jury shall find from the evidence that Samuel D. King, as surveyor general of California, prior to the 30th day of June, 1853, paid certain amounts due to himself and other creditors of the Government upon the accounts and salaries, and office rents and contingencies, given in evidence in this cause, out of moneys raised by him upon orders or drafts drawn upon the Government, and by him made known to the Government to have been drawn for the accounts to which the said payments were in fact applied, and that said drafts were paid, and said amounts thereby reimbursed to him by the Government after the 30th day of June, 1853, then it is not competent for the defendant in this action to apply the amounts of those accounts thus by him paid, and extinguished, as a set-off against the amount due by him to the Government upon the survey account prior to the 30th of June, 1853, as given in evidence in this cause.'

The defendants took a bill of exceptions. The verdict was in favor of the United States for $10,531 43, on which the court gave judgment, and thereupon the defendant below took this writ of error.

Mr. Bradley and Mr. Carlisle, of Washington city, argued the cause here for the plaintiff in error, and contended that there was no evidence upon which the hypothetical charge of the court below could be sustained. The record will be searched in vain for a single word to justify the declaration that 'prior to the 30th of June, 1853, King paid himself and other creditors out of moneys raised by him on orders or drafts drawn upon the Government, and by him made known to the Government to have been drawn, for the accounts to which the said payments were in fact applied.' On the contrary, all the evidence repels such a theory.

As sureties can only be held for money lawfully placed in an officer's hands, the time when he received it from the Government, or under its authority, is the period on which the liability of the sureties depends. With the date of drafts and transactions between the officer and his correspondents or bankers the Government has no concern; and as they create no charge upon the Government, and are merely private and unofficial acts, they cannot be employed by the Government to charge the sureties.

From the statement of the account, as exhibited by the Government, it appears that King had public money in his hands to make the disbursements credited in his account. It was his legal duty to apply it to that purpose, and there is no evidence that it was not so applied.

The Treasury transcripts show that the payments credited to King must have been made out of the public money in his hands, and could not have been made out of moneys raised on his draft to Meigs.

Mr. Bates, Attorney General, and Mr. Coffey, Assistant Attorney General, for the United States.-King owed the Government at the time he drew upon the Treasury, and the Government was in debt to him for his salary, and to other persons on other accounts. With the money he obtained on his draft while he was still in office he paid those debts. Now his surety claims a credit for the payments made by King between the 31st of May and the 30th of June, and denies the right of the United States to charge him with the very money out of which those payments were made. The defendants in error submit that the payments referred to are in justice and in law applicable, not to the debt which King owed to the Government for moneys previously in his hands, but to the satisfaction of the debt which he incurred by drawing on the Treasury the bill in favor of Meigs, which was afterwards accepted and paid.

The evidence that Meigs cashed the draft, and that King got the money on it and used it, or as much of it as was necessary for the purpose mentioned, is proved by abundant evidence. Certainly it cannot be said that there was not evidence enough to justify the court in submitting it to the jury.

The requisition could not have been drawn in favor of Meigs for any legal or good reason, unless to reimburse him for moneys which before that time he had advanced to King. The letter of King dated the 31st of May, 1853, shows that the money to make the payments which were, in fact, made during the next month could be got only on his draft.

It being unquestionable as matter of fact that King did receive the $20,000 before he retired from office, why are his sureties not as liable for that as for any other moneys received by him from the Government? Can it make any difference that he received the money through a draft from Meigs, and not directly from the Treasury, or that Meigs did not get the money until the 9th of July? To answer this in the affirmative would be to open an easy door to official dishonesty.

The condition of the bond is, that the officer 'shall continue truly and faithfully to execute all the duties of the said office according to law.' It is broken if he draws for money while he is in office, and receiving it afterwards, refuses to account for it. It has been held that where a collector was chargeable with duty bonds given while he was in office, his sureties and not his successor were entitled to a credit for money paid on them after his term expired. United States vs. Eckford, (1 How., 262.) And why? Because the money thus paid was in consequence of the officer's act while he held the office. On the same principle he and his sureties should be liable for money which he receives after he goes out, in consequence of acts done while he was in.

King's sureties had no right to expect that the money would be withheld because he was going out of office; for, first, he had already received the money; and, secondly, the Government is not bound to endanger the public interests for the protection of a surety. United States vs. Kirkpatrick, (9 Wh., 735;) United States vs. Van Zandt, (11 Wh., 184;) Dox vs. P. M. General, (1 Pet., 323.)

Mr. Justice NELSON.