Page:Federal Reporter, 1st Series, Volume 10.djvu/661

 UNITED STATES V. DE VISSER. 649 �the surety," and therefore it is held that any laches of the government officers in the performance of such directory duties is no defence to a Burety, sinee it does not violate any duty owed to him, or any of the implied terms of the contract with him. And this is the principle of all that class of cases. �But if the statute of 1861 was not designed to be merely a direc- tion to the government ofiScers, but was designed directly to affect, or by its operation does necessarily directly operate upon and affect, the rights of the sureties in warehouse bonds, then it canuot be held to be merely directory, like those in the cases last cited, but must form, by implication of law, a part of the contract; since otherwise the statute would be rendered nugatory. That such is the intention and the necessary effect of the statute of 1861 seems to me to be olear from the language of the act, and from the presumed intention of it to be gathered from the varions statutes on the subject, and from a consideration of what would be the rights of the parties in the absence of any similar statutory provisions. �Aside from any statutory provisions of this character, the bond in question, upon the lapse of three years without withdrawal of the goods and payment of the duties, would be forfeited, and an action at law would at once lie upon it against the principal and surety, without reference to the goods still in the possession of the govern- ment. The latter would also have the right, at its election, to pro- ceed first to realize what it might from a sale of the goods, on due notice to the parties interested, paying the surplus, if any, to the owner; and if a deficiency resulted, to recover such deficiency after- wards by action upon the bond. In either case the principal would have a legal right to pay the debt, i. e., the duties and charges, at. any time after three years, and before a sale of the goods, and at the- same time take the goods into his possession; and the surety also, at any time before payment by the principal, would have the same right to pay the debt, and be subrogated to all the rights of the United! States to the goods in its possession, and to its right of action against the principal ; and this right, between individuals, could be enforced by suit. These are familiar principles in the law of suretyship.. Johnson v. Zink, .51 N. Y. 336; Hayes v, Ward, 4 Johns. Ch. 123, 131; Marsh v. Pike, 10 Paige, 595. Hence, if there was no statutorj- provision of this kind, the time for the payment of duties on all warehouse goods would be practically considerably enlarged, since payment of duties could always be safely deferred until the govern- ment was ready to effect a sale. To avoid this praetical extension ��� �