Bernard Farrar and Joseph Brown, Plaintiffs In Error v. the United States

• Citation: 8 L.Ed. 159,30 U.S. 373,5 Pet. 373
• Parties: BERNARD G. FARRAR AND JOSEPH C. BROWN, PLAINTIFFS IN ERROR v. THE UNITED STATES
• Decision Date: 01 January 1831
• Court: United States Supreme Court

30 U.S. 373

5 Pet. 373

8 L.Ed. 159

BERNARD G. FARRAR AND JOSEPH C. BROWN, PLAINTIFFS IN ERROR v. THE UNITED STATES.

January Term, 1831

ERROR to the district court of the United States for the district of Missouri.

This was an action of debt, brought by the United States in the district court of the United States for the district of Missouri, against Bernard G. Farrar, Joseph C. Brown, and others, upon a bond dated the 7th day of August 1823, in the penal sum of thirty thousand dollars, conditioned that 'whereas the president of the United States had, pursuant to law, appointed William Rector surveyor of the public lands in the state of Illinois and Missouri, and in the territory of Arkansas; now, therefore, if the said William Rector shall faithfully execute and discharge the duties of his office, then the obligation to be void.'

The defendants pleaded that William Rector had performed his duties as surveyor.

The breach assigned in the replication is, that at the time of the execution of the bond, 'there were in the hands of the said William Rector, as such surveyor, to be by him, in the discharge of the duties of his office, applied and disbursed for the use and benefit of the plaintiffs, divers sums of money, amounting in the whole to a large sum of money, to wit: the sum of forty-four thousand seven hundred and eighty dollars and thirty-eight cents; and that the said William Rector hath not applied and disbursed the same, or any part thereof, for the use and benefit of the plaintiffs, as in the execution of the duties of his said office he ought to have done.'

Upon this plea issue was taken, and under the instructions of the court the jury found the issue for the plaintiffs below, and assessed the damages at forty thousand four hundred and fifty-six dollars and twenty cents; and judgment was rendered for that sum in damages.

At the trial the plaintiffs produced and read in evidence, a duly certified copy of this bond, and a transcript from the books and proceedings of the treasury, certified by the register of the treasury, and authenticated under the seal of the department. The certificate so annexed, was in the following words:

'I, Joseph Nourse, register of the treasury of the United States, do certify that the foregoing report and statement, No. 47, 798, of the account of William Rector, late surveyor of public land in the state of Illinois and Missouri, and the territory of Arkansas, are true copies of the originals on file in this office.'

The defendants objected to the reading of this evidence, and the court overruled the objection. The defendants then offered competent evidence to prove that Rector, before the execution of the bond declared on, had expended for his own private use all the money charged to have been received by him from the United States, which proof the court refused to admit. The defendants then offered to prove that Rector, before the execution of the bond, had expended thirty-two thousand dollars of the balance appearing against him in the account given in evidence, in legal payments to deputy surveyors; but the court refused to admit the evidence, because no claim for credits on account of said payments, or any of them, had been made at the treasury department.

They also gave in evidence a letter from John M'Lean, commissioner of the land office, to William Rector, dated 13th of June 1823, as follows:

'Enclosed you have a commission from the president of the United States, appointing you, by and with the advice and consent of the senate, surveyor of the public lands in the states of Illinois and Missouri, and in the territory of Arkansas, for the term of four years from the date thereof, the 20th of February 1823. You will please to qualify yourself by taking an oath to support the constitution of the United States, and by entering into bond with one or more good securities, in the sum of thirty thousand dollars; the securities to be approved by the United States district judge or attorney, whose certificate must be endorsed on the bond, a form of which is enclosed. The bond and oath to be sent to this office.'

As has been stated, the bond sued on is dated on the 7th of August 1823, and it appeared by Rector's account with the government, exhibited in the bill of exceptions, that the money now sought to be recovered of the sureties was entrusted to Rector at various times, from the 3d of March to the 4th of June, in clusive, of the same year.

The defendants below prayed the court to instruct the jury that 'if they find from the evidence that William Rector, at the time the money with which he is charged was received, had not received a commission, as surveyor of the public lands in the state of Illinois and Missouri, and the territory of Arkansas, the present defendants are not liable to this action, upon the breach assigned;' which instruction the court refused to give: but instructed the jury, 'that all moneys which had been received by the said William Rector, as surveyor of the public lands in the state of Illinois and Missouri, and territory of Arkansas, prior to the execution of the writing obligatory declared on, and which had not been duly disbursed by him in the discharge of the duties of his office, or paid back to the government, would be considered in his hands, in the sense of the issue joined between the parties in this case; and that whether the moneys so received were received between the date of his appointment and the time when the commission came to his hands, or after the last mentioned time, was immaterial; and whether he had given bond and taken the oath of office, before the receipt of the money, as aforesaid, was equally immaterial.' And further instructed the jury, 'that the transcript aforesaid might be received by them as evidence that the money charged in the account had been received by him, as surveyor as aforesaid, and was evidence that there were moneys in his hands, at the date of the said writing obligatory, as stated in the account contained in the said transcript, to be disbursed in the due discharge and execution of the duties of his office, or accounted for to the government, as surveyor as aforesaid: subject, however, to be impeached by evidence on the part of the defendants. That the letters testamentary and of administration, in evidence in the present case, on the part of the defendants, entitle them to the benefit of a credit for the amount of the items which appears by the account to have been suspended, for want of proof of the executorship of William Rector, and the want of proof that letters of administration had been granted to Thomas C. Rector, against the balance appearing on the accounts.'

The defendants then moved the court to instruct the jury, 'that upon the whole evidence the plaintiff could not recover,' which instruction was refused.

The defendants, by their counsel, moved the court for a new trial; for a repleader; in arrest of judgment; and for judgment for the defendants; non obstante veredicto; all which motions were overruled. They then prosecuted this writ of error.

The case was argued by Mr Geyer and Mr Benton, for the plaintiff in error; and by Mr Berrien, attorney general, for the United States.

For the plaintiff in error it was contended:

1. That the judgment is erroneous.

2. That the act of congress requiring surveyors general to give bond and security, does not apply to Rector; who was not a surveyor general.

3. That the bond sued upon is not such a one as the act of congress prescribes.

4. That it was no part of the duties of the office filled by Rector, to disburse moneys.

5. That the money alleged to have been put into his hands was before he had been commissioned, and before the bond in question was given.

6. That the treasury transcript of Rector's account admitted on the trial, was not in this case evidence under any act of congress.

7. That the appellants had a right to have proved that Rector had applied the money put into his hands to the public use.

8. That the court below erred upon all these points, as set forth in the record and bill of exceptions; and also erred in refusing a new trial, and overruling the motion in arrest of judgment.

Mr Geyer and Mr Benton, for the plaintiffs in error, argued that this was an action of debt on a penal bond, judgment has been rendered in damages for an amount exceeding the penalty, and although the excess may be corrected by a remittitur; there is error in the form of the judgment, which the statute referred to (authorizing breaches to be assigned and damages assessed) does not cure: that statute expressly declares that the judgment is to be entered as theretofore had been usually done.

A surveyor like Rector was not bound to give a bond with security. Land Laws, 698, 818. Acts of congress, passed 6th February 1806, 7th May 1822. He was a subordinate officer, and the law applies only to the surveyor general; and he only is required to give a bond: nor was it a part of the duty of this officer to disburse public money. It not being a part of the regular duties of this inferior officer to receive and pay the public funds, his sureties are not answerable for any violation of a trust illegally or without authority cast upon him.

Unless the bond sued on was authorized by some act of congress, it is not obligatory. Although the power of making contracts is inherent in every sovereignty, and may be exercised in every government which has a constituted agent authorized to exert that power, and an existing code of laws ascertaining the obligation of such contracts; yet the United States not having by the constitution of their government committed the exercise of this attribute of sovereignty to any officer or agent, it cannot be exercised in the absence of any expression of the legislative rule.

The common law of England cannot be referred to, for the purpose of ascertaining the powers, or measuring the capacity of this government or its...