United States v. Babbitt (95 U.S. 334)

ERROR to the Circuit Court of the United States for the District of Iowa.

This is an action of debt upon a bond given by Lysander W. Babbitt and the other defendants to the United States, on the ninth day of May, 1853, to recover the sum of $10,000 alleged to have been charged and received by him, during his term of office, as fees for the location of military bounty-land warrants under the provisions of the acts of Congress approved the 11th of February, 1847, the 28th of September, 1850, the 22d of March, 1852, and the 3d of March, 1855, over and above the maximum compensation of $3,000 which he, as such register, was authorized to retain. The bond was conditioned as follows:--

'Whereas the President of the United States hath, pursuant to law, appointed the said Lysander W. Babbitt register of the land-office for the district of land subject to sell at Kanesville, in the State of Iowa, for the term of four years from the sixth day of April, 1853, by commission dated the eighth day of April, 1853: Now, therefore, if the said Lysander W. Babbitt has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office, according to law, then the above obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue.'

The defendants, Hall and Burnett, as the sureties on the bond, among other pleas, pleaded separately for themselves that it was no part of the official duties of Babbitt, as such register, to receive the said fees, and that he was not required, by the obligations of said bond, to pay the same to the United States.

Babbitt, for himself alone, among other pleas, pleaded the same defence.

To each of these several pleas the United States demurred.

The court overruled the demurrers, and rendered final judgment in favor of all the defendants.

On the hearing of the demurrers and in the rendition of said judgment, the judges were opposed in opinion upon two questions, which are set forth in the opinion of the court. The United States sued out this writ of error.

Mr. Assistant Attorney-General Smith for the plaintiff in error.

No counsel appeared for the defendants in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.