United States v. Girault

THIS case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.

The United States sued out process against James A. Girault, William M. Gwin, Hay Battle Harrison, and Alexander J. McMurtry, and declared for a debt of $100,000 by bond, bearing date the 8th of July, 1838, executed by the defendants to the United States, with condition, reciting that the defendant Girault had been appointed by the President of the United States, by commission bearing date the 2d of June, 1838, receiver of public money for the district of lands subject to sale at Chocchuma, in the State of Mississippi, that, 'if the said Girault shall faithfully execute and discharge the duties of his office, then the obligation to be void'; and assigned for breach, 'that on the 2d day of June, 1840, the said Girault, as receiver of public money as aforesaid, had received a large amount of public money, to wit, the sum of $8,952.37, which said sum of money, he, the said James A. Girault, has hitherto wholly neglected and refused, and still neglects and refuses, to pay to the United States, contrary to the form and effect of the said writing obligatory; and of the condition thereof by reason of which,' &c.

To this the sureties, Gwin, Harrison, and McMurtry, pleaded (by leave of the court first had) four several pleas.

1. That after the making of the bond declared on, (and after the said 2d of June, 1840, mentioned in the assignment of breach,) and before the commencement of suit, to wit, on the 25th of September, 1840, the said J. A. Girault, and McRae Bartlett, George K. Girault, Wilson and Blocker, made their act and deed to the plaintiffs in the penal sum of $100,000, reciting the appointment of said James A. Girault as receiver of public money at Chocchuma, by commission bearing date the 2d of June, 1838, with condition, 'that, if the said James A. Girault had truly and faithfully executed and discharged, and should truly and faithfully continue to execute and discharge, all the duties of said office, according to the laws of the United States,' &c., &c.; which bond and condition the plaintiffs did then and there 'receive and accept of and from said James A. Girault, _____, in full lieu, discharge, and satisfaction of the said writing obligatory in the plaintiffs' declaration mentioned; and this the said defendants are ready to verify; wherefore they pray judgment if,' &c.

2. That on the 2d of June, 1840, and on several days before, 'the said James A. Girault issued receipts as receiver of money, paid for certain lands therein specified, and so returned, at the times aforesaid, to the Treasury Department of the United States, to the amount of ten thousand dollars, and of which the amount in the declaration mentioned is part and parcel; and these defendants say, that neither the said ten thousand dollars, nor any part thereof, were ever paid to or collected by him, the said James A. Girault, which these defendants are ready to verify and prove; wherefore they pray judgment if the said plaintiffs shall have their action against them.'

3. The third plea says, 'that said J. A. Girault caused to be entered for his own use several parcels of land, amounting to eight thousand acres, and gave and issued receipts for money paid therefor on the 2d of June, 1840, and on divers other days before that time, and returned an account to the Treasury Department of the United States in said receipts specified, to the amount of ten thousand dollars, of which amount the sum mentioned in plaintiffs' declaration is part and parcel.' 'And the said defendants aver that neither the said moneys, nor any part thereof, were ever paid or deposited in said office by the said Girault, or any one for him, and this the defendants are ready to verify; whereof they pray judgment.'

4. The fourth plea alleges that the plaintiffs ought not to have their action, because the defendants say 'that no public moneys of the United States came to the hands of the said James A. Girault, as such receiver, after the execution of said bond, nor were there any such public moneys, for the payment of which the defendants were chargeable by virtue of the said bond, received by him prior to the execution of the same, remaining in the hands of the said receiver, in his official capacity, at the time of the execution of said bond, or at any time thereafter, which had not been paid or accounted for according to law, before the commencement of this suit, which the defendants are ready to verify; wherefore they pray judgment,' &c.

To these pleas the attorney for the United States demurred.

The court sustained the demurrer to the first plea, overruled it as to the second, third, and fourth; and adjudged that the plaintiffs be barred from having their aforesaid action.

To review this judgment the United States sued out a writ of error, and brought the case up to this court.

It was submitted on printed arguments by Mr. Crittenden (Attorney-General), for the United States, and Mr. Cocke, for the defendants.

Mr. Crittenden, for the appellants.

As the demurrer brings all the pleadings before the court for judgment, to be rendered for the party who shall, on the whole record, appear to be rightfully entitled to judgment, it is proper to point out the defects in all the pleas of the appellees.

A demurrer admits only such facts as are well pleaded; never admits the law as deduced by the pleader from the facts pleaded, but refers the law to the judgment of the court, and may well be entered for a false allegation of law. U. States v. Arnold, 1 Gall. 348.

I. The first plea is ill, for several reasons:--

1. The action is in debt on a bond, and it is not a good plea that the plaintiffs accepted another bond in satisfaction of the old bond, and for the damages upon the breach of the old bond; for that is no satisfaction, actual and present, as it ought to be. Lovelace v. Cocket, Hobart, 68; 4 Bac. Abr. Pleas and Pleading, (I.) p. 87.

2. The new bond, pleaded with a condition retrospective, with intent to include and cover breaches of duty committed by the receiver, before the date of the new bond, was void as to that, and not binding on the securities; and therefore could not be satisfaction for the bond, and the breaches and damages in the declaration alleged. Armstrong v. U. States, Peters, C. C. Rep. 46.

3. The plea alleges a bond by Girault and his sureties, of the 25th of September, 1840, of a character which no officer of the government of the United States had any lawful power or rightful authority to agree to accept, or to accept or receive in lieu or in satisfaction of the said prior lawful bond, debt, and damages, in the declaration mentioned.

4. The said plea does not traverse the bond and condition declared upon, nor the breach alleged in the declaration, but, confessing the said bond, condition, and breach, the plea sets up matters of defence which in law do not amount to any avoidance or sufficient defence of the cause of action in the declaration charged and averred.

5. The plea does not aver to what officer or agent of the government of the United States the said alleged bond of 25th September, 1840, was delivered, nor what officer or agent of the government of the United States agreed to accept said bond in lieu, discharge, and satisfaction of the bond in the declaration mentioned; neither does the plea aver, show, or rely upon any law, authority, or rightful power in any officer, agent, attorney, or minister of the government of the United States, to agree to and accept such accord and satisfaction as is in said plea relied upon and pleaded; neither in point of law had any person competent authority or rightful power, for and on behalf of the government of the United States, to agree to and accept any such accord and satisfaction as in said plea is supposed and alleged.

II. and III. The second and third pleas are ill; they allege acts done and committed by the officer Girault, which were in violation of the duties of his office, in direct breach of the condition of his official bond mentioned in the declaration; which acts, so alleged by the pleas, rendered the officer Girault and his sureties liable to the United States for the amount of money specified in those official receipts and official returns. The pleas allege nothing to exonerate Girault and his sureties from liability to the government for the amount of money specified in those receipts and reports.

The receiver Girault and his sureties are liable to the government upon the official receipts and official returns made by the receiver; and whether he did or did not in fact receive the money before he issued his receipts, and made his official returns thereof, is immaterial. He is chargeable, and so are his sureties, upon his official receipts and returns, because those receipts issued and those returns entitled the persons to whom those receipts were given, and their alienees, to patents for the lands mentioned in the receipts as having been paid for.

The receiver and his sureties cannot require of the government to go behind those official receipts and official reports, to prove by evidence aliunde that the receiver's receipts and official returns are not false, and that in point of fact he did receive the money.

The receiver and his sureties are estopped by his official receipts and official returns of money received.

The interests of the government in respect of the sale of the public lands would be in a perilous condition, if the government could be required by such pleas as these, No. 2 and 3, to go into an inquiry, by parol proof or evidence aliunde, whether the official receipts and official returns of the receivers of public moneys were true or false.

Pleas No. 2 and 3 confess the matters alleged in the declaration, confess the cause of action, without alleging any lawful avoidance.

IV. The fourth plea which is pleaded in bar concludes with a verification, contains no traverse of the matter alleged in the declaration, and is totally illegal and insufficient.

The plaintiffs could have made no other replication to this plea, than by repeating the assignment of breach contained in the declaration.

If the plaintiffs had so replied, still there would have been no issue joined; the defendants might have rejoined by repeating this fourth plea, to which the plaintiffs could have sub-rejoined nothing more than the assignment of breach as first made in the declaration; and so the pleadings might have progressed without end, and without an issue. The plaintiffs were by force of this mode and form of special pleading under the necessity of demurring, so that the insufficiency and illegality of the plea might be judicially determined.

The declaration contains a material, positive averment of matter of facts in breach of the condition of the bond sued on, which material averment is not traversed by the plea, as it should have been, whereby that matter and the cause of action are admitted by the defendants. Toland v. Sprague, 12 Pet. 335; Hudson v. Jones, 1 Salk. 91; Blake v. West et al. 1 Ld. Raym. 504; 4 Bac. Abr., Pleas and Pleading, (H.) traverse, pp. 67-83.

This plea is not direct, positive, and single, as required by law, but is uncertain, argumentative, double, multifarious, equivocal, and evasive; it contains a negative pregnant with an affirmative, and an affirmative pregnant with a negative; it is contradictory the one part thereof to another; it first alleges that no moneys came to the hands of Girault as receiver after the execution of the bond sued on; and next alleges argumentatively, that all moneys which came to the hands of the receiver, with which the sureties were chargeable, had been paid or accounted for according to law before the commencement of this suit. If this plea amounts to any defence at all, it is in the beginning a general denial that any moneys had come to the hands of Girault, and in the after part it argumentatively asserts that all the public moneys which came to Girault's hands as receiver had been paid and accounted for before suit; provided, however, that the plea is to be understood as relating only to such moneys as the defendants, the sureties of Girault, were chargeable with by virtue of their bond.

A defendant is not at liberty to plead specially a plea that amounts to the general issue; much less to plead the general issue, argumentatively, with duplicity, and with uncertainty. 4 Bac. Abr., Pleas and Pleading, (G,) p. 54; 3 of special pleas, p. 60, (I.); 5, p. 97; 6, p. 98.

This plea is framed to let in the matters of pleas No 2 and 3; seems to be intended as a special plea of 'non infregit,' a special plea of 'conditions performed,' with the qualification annexed, that if the principal, Girault, did break the condition of the bond, or did not perform the condition of the bond, yet they, the sureties, are not bound for the breaches and non-performance. It may properly be denominated 'Point-no-Point,' which the attorney of the United States could meet in no other way than by a demurrer.

Mr. Cocke, for defendants.

The demurrer admits the truth of the facts severally pleaded.

We hold that it was competent for the United States to contract to receive the bond mentioned in the first plea in lieu and satisfaction of the one sued on, and we are at a loss to perceive upon what principle the court below sustained the demurrer to the first plea.

This court is respectfully requested to bear in mind, that the only breach relied upon in this action is the refusal of Girault to pay over moneys alleged to have been collected and received by him in his official capacity.

By the pleadings in the cause it is admitted, that he did not receive any money; that he issued certificates for land without payment therefor; and that he had fully paid over and accounted to the treasury of the United States for all moneys received by him officially, prior to the institution of this suit. Which facts constitute, in our opinion, a full bar to this action.

We submit that it is too important to the treasury of the United States for a receiver of a land-office to have power, by fabricated certificates of purchase of public land, to change the title, and, by seeking to charge sureties for the supposed purchase-money, to obtain valid title to any portion of the public domain.

The result in every case would be a total insolvency, and a loss to the government of the money and the land. It is believed that the legislation on the subject does not contemplate the power to make such a disposition of the public lands.

We consider that the principles relied upon in said pleas are well settled in the case of the United States against Boyd and others, 5 Howard's Supreme Court Reports, 29, to which we respectfully refer the court, and on which we confidently rely, and insist that the judgment be affirmed, and the plaintiffs barred of their action. But if, contrary to our expectations, the matters set forth in the second, third, and fourth pleas are not held sufficient to bar the plaintiffs, then we request the consideration and judgment of the court on the sufficiency for such bar in the matters of the first plea.

Mr. Justice NELSON delivered the opinion of the court.