Page:Federal Reporter, 1st Series, Volume 10.djvu/671

 TJNITED STATES V. DE VIS8EB. 659 �Under the authorities above cited, (U. S. v. Kirkpatrick, etc.,) mere laches by govemment officers in effecting a Siile would not avail as a defence, but this af&rmative poatponement of the sale by the special order of the secretary of the treasury was not laches, any more than an express extension of credit would have been, nor was it an aet in pursuance of "prescribed regulations." It was an isolated, inde- pendent order, contrary to those prescribed regulations." If one deliberate postponement can be upheld without the surety's consent, the sale may be postponed indefinitely, his risk be indefinitely ex- tended, and his liability to loss through the insolvency of his princi- pal be indefinitely increased. Such a liability to an indefinite exten- sion of the surety's risk cannot have been designed, and ought not to be sustained, under the warehouse System, which requires sureties to be given to so vast an extent in the commerce of the country ; nor can such a possibility be supposed to have been contempla ted by the sureties who have entered into obligations under it. �The order of the secretary to withdraw the goods from sale was an absolute one, so far as related to the defendants. It was not made to depend upon their assent, nor was such assent required. That they would remain bound was assumed. "The interests of the gov- ernment," referred to in the proviso, evidently relate to the goods and to the price to be obtained for them. It cannot be supposed that the secretary meant to submit to the decision of the collector the legal question whether the surety's assent was required or not,. However this may be, the sale was postponed by the colleetor under this order, apd the discretion conferred on him by it, and the govemment must be held bound by its legal consequences. �The resuit would be otherwise if I could find that at any time before sale the surety had any legal right to pay the debt and be subrogated to the possession of the goods, or any right of immediate suit against his principal; for in that case, the postponement of the sale having no effect upon the surety's immediate rights of paymeut, subroga- tion, or suit against his principal, would work no necessary exten- sion of his risk, and therefore no legal injury. But, as the statute in question, and the policy it established, involve a loss of the sure- ty's right of payment and subrogation to the possession of the goods, and the suspension of the government's right of action until after the sale, and consequently a suspension of the surety's right to proceed for his indemnity, I see no alternative but to hold a voluntary post- ponement of the sale without the surety's assent to be a discharge. ��� �