Supreme Court of United States.
*189 The case was argued by Mr. Gilpin, Attorney General for the United States. Mr. Davis, in behalf of Mr. Cocke, submitted a printed argument for the defendants.
*206 Mr. Justice CATRON delivered the opinion of the Court.
This was an action of debt brought upon a bond with the following recital and condition, dated June 15th, 1837:
"The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said Gordon D. Boyd, Receiver of Public Moneys for the district of lands subject to sale at Columbus, in the state of Mississippi, for the term of four years from the 27th day of December, 1836.
"Now, therefore, if the said Gordon D. Boyd shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect, otherwise it shall abide and remain in full force and virtue."
*207 The defendants craved oyer of the bond, condition, &c.; and pleaded performance of the condition.
By a replication, the defendants assigned two breaches.
1. That said Boyd, after the 27th day of December, 1836, received, in his official capacity fifty-nine thousand six hundred and twenty-two dollars, which he failed to pay over to the United States, as he was bound to do by law.
2. That said Boyd on the 27th day of December, 1836, and at divers days between that day and the 30th day of September, 1837, received fifty-nine thousand six hundred and twenty-two dollars as Receiver, which sum remained in his hands on the 30th day of September, 1837; and that he failed to pay the same pursuant to his instructions from the Secretary of the Treasury, as he was bound to do by law, and the duties of his office.
To this replication the defendants demurred; and the Court below sustained the demurrer.
The first question arising on the pleadings is, whether the sureties of Boyd are bound for defalcations between the 27th of December, 1836, the date of the appointment, and the 15th day of June, 1837, the date of the bond.
The condition of the bond is prospective, and in its last clause does not differ in effect from that passed on in the case of Farrar and Brown v. The United States, in 5 Peters, 374. 389. In that case, William Rector had been appointed Surveyor of Public Lands, and given bond with sureties, conditioned, "If the said William Rector shall faithfully execute and discharge the duties of his office, then said bond to be void," &c.
Rector had been appointed and commissioned as Surveyor on the 20th February, 1823. The bond bore date the 7th day of August, 1823. The prominent question presented on the trial was, whether the sureties of Rector were liable for moneys received by him as surveyor, and appropriated to his own use, after his appointment, and before the execution of the bond; on which the Court held, that the sureties could only be made answerable for moneys in Rector's hands at the date of the bond; which were held by him in his official capacity, in trust for the government, and not for moneys previously appropriated to his own use. Say the Court, "If intended to cover past dereliction, *208 the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct."
But the failure of the Receiver to account, and pay quarterly, as prescribed by the rules of the Treasury Department: or monthly, if the sum of ten thousand dollars had been received during any one month, was no legal defalcation of which the sureties can avail themselves. Laches are not imputable to the government. The regulations requiring settlements to be made by its officers at short periods are designed for the protection of the government, and merely directory to the officers, and form no part of the contract. Such is the settled doctrine of this Court, as holden in The United States v. Kirkpatrick, 9 Weaton. The United States v. Vanzant, 11 Wheaton; and The United States v. Nicholl, 12 Wheaton, 509.
It follows, the averment in the replication, that Boyd, from the 27th of December, 1836, to the 30th of September, 1837, had received on behalf of the United States, the sum of fifty-nine thousand six hundred and twenty-two dollars, which sum, at the last date, remained in his hands, and for which he then failed to account, as bound to do by law, and the duties of his office, is a good breach of the condition, and well assigned; it matters not at what time the moneys had been received, if after the appointment they were held by the officer in trust for the United States, and so continued to be held, at, and after, the date of the bond. That they were so holden at the end of the third quarter of 1837, is admitted by the demurrer.
It is insisted on behalf of the United States, that aside from the foregoing considerations, the sureties are bound equally with the principal in the bond, on the ground that the condition, on settled legal principles, and by implication, is retrospective, and covers all defaults of the officer, from the date of the commission; because it is recited, and part of the obligation, that Boyd had been appointed Receiver for four years from the 27th day of December, 1836. We have with much care considered this position, and think it cannot be sustained. This Court held, in Miller v. Stuart, 9 Wheaton, 702, that the liability of a surety is not to be extended, by implication, beyond the terms of his contract; that his undertaking is to receive a strict interpretation; *209 and not to extend beyond the fair scope of its terms; and that the whole series of authorities proceeded on this ground. The principal ones relied on in that case have been relied on in the present; and we think the principles settled by them preclude the Court from maintaining that the sureties are liable by implication, contrary to the plain prospective obligation of the bond: "that the said Boyd shall faithfully execute and discharge the duties of his office." In the language of the Court, in Farrar and Brown v. The United States: "If intended to cover past dereliction, the bond should have been made retrospective in its language."
Some difficulty has been presented in regard to the form of the replication, testing it by the common law principles of pleading. It avers several breaches. The cause, however, comes by writ of error from the district of Mississippi; and the modes of proceeding of that state govern the pleadings. By the act of 1822, sec. 2, found in the Revised Code of Mississippi, 614, any number of breaches may be assigned; and by sec. 6, when a demurrer shall be joined, in any action, no defect in the pleadings shall be regarded by the Court, unless specially alleged in the demurrer, as causes thereof. That several breaches had been assigned, is not alleged as a special cause of demurrer, and therefore could not have been noticed by the Court, had no provision existed justifying more breaches than one; even had such replication been contrary to the strict rules of pleading by the common law.
It is proper to remark, that when this cause is remanded to the Circuit Court for further proceedings to be had therein, it will be in the condition it would have been, had that Court overruled the demurrer; and subject to additional pleadings, or an amendment of the present ones, according to the rules and practice of the Circuit Court; and on such terms as it may impose.
We order that the judgment be reversed, the demurrer overruled; and that judgment be entered by the Circuit Court, for the penalty of the bond in favour of the United States against the defendants, to be discharged by the assessment of damages on the second breach in the replication, unless the pleadings, on leave granted, be amended, in prevention of such judgment, and assessment of damages.
*210 This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to overrule the demurrer, and to enter judgment for the penalty of the bond, in favour of the plaintiff, against the defendants, to be discharged by the assessment and payment of damages on the second breach in the replication, unless the pleadings, on leave granted, be amended, in prevention of such judgment and assessment of damages.
