The United States, Plaintiff In Error v. Charles Le Baron

• Decision Date: 01 December 1856
• Citation: 19 How. 73,60 U.S. 73,15 L.Ed. 525
• Parties: THE UNITED STATES, PLAINTIFF IN ERROR, v. CHARLES LE BARON
• Court: U.S. Supreme Court

60 U.S. 73

19 How. 73

15 L.Ed. 525

THE UNITED STATES, PLAINTIFF IN ERROR, v. CHARLES LE BARON.

December Term, 1856

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Alabama.

It was an action of debt upon the bond of a deputy postmaster at Mobile, signed Oliver S. Beers, the officer, and Charles Le Baron and George N. Stewart, his sureties.

The statement of the case contained in the opinion of the court renders it unecessary to recite the demurrers to the declaration and pleas, or the replications and rejoinders which were in the record. The point in controversy was found in the following charge given to the jury:

Upon this evidence the court charged the jury, that the recital in the condition of the bond sued on, 'whereas Oliver S. Beers is deputy postmaster at Mobile,' relates to the office he held when the bond was signed, and could not refer to a term of office not yet commenced.

The court further charged and said, that, according to the strict propriety of language, the said recital relates to the precise period of time when the recital was written, (speaking as it does of the present time,) and not to the time when it was executed by its delivery, which the admitted proof shows took place on a subsequent day.

That at the time said bond was signed, the said Beers was not in office under his appointment, by and with the advice and consent of the Senate, and therefore they, the jury, ought to find for the defendant.

To which charge of the court the plaintiffs, by their attorneys, then and there excepted, and asked the court to charge the jury that the bond related to, and was intended to provide, a security for the faithful discharge by Beers of the duties of the office of deputy postmaster at Mobile, under the appointment by and with the consent of the Senate; which charges the court refused to give; and plaintiffs then and there excepted, and asked the court to charge the jury that it was for them to determine to which term of said office the said bond related, and that the recital in it, that 'Beers is deputy postmaster at Mobile,' must be considered as made at the time when the bond was delivered and executed; which charge the court also refused to give; and the plaintiffs then and there excepted to such refusal, and prayed the court to sign and seal this their bill of exceptions, which is done accordingly, in term time.

JOHN GAYLE, Judge. [SEAL.]

The case was argued by Mr. Cushing (Attorney General) for the United States, and by Mr. Stewart for the appellee.

Mr. Justice CURTIS delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the southern district of Alabama, in an action of debt, founded on an official bond of Oliver S. Beers, as deputy postmaster at Mobile, the defendant being one of his sureties.

It appeared, on the trial in the Circuit Court, that Beers was appointed to that office by the President of the United States, during the recess of the Senate, and received a commission, bearing date in April, 1849, to continue in force until the end of the next session of the Senate, which terminated on the thirtieth day of September, 1850.

It also appeared, that in April, 1850, Beers was nominated by the President to the Senate, as deputy postmaster at Mobile; and the nomination having been duly confirmed, a commission was made out and signed by President Taylor, bearing date on the twenty-second day of April, 1850; but it had not been transmitted to Beers on the first day of July, 1850, when the bond declared on bears date. Beers took charge of the post office at Mobile before his second appointment, and continued to act, without intermission, until he was removed from office in February, 1853. The default, assigned as a breach of the bond, was admitted to have occurred under his second appointment; and the principal question upon this writ of error is, whether the bond declared on secures the faithful performance of the duties of the office under the first or under the second appointment.

The condition of the bond recites: 'Whereas the said Oliver S. Beers is deputy postmaster at Mobile aforesaid,' &c.

The first inquiry is, to what date is this recital to be referred? The district judge, who presided at the trial, ruled that it referred to the office held by Beers when the bond was signed. The delivery of a deed is presumed to have been made on the day of its date. But this presumption may be removed by evidence that it was delivered on some subsequent day; and when a delivery on some subsequent day is shown, the deed speaks on that subsequent day, and not on the day of its date.

In Clayton's case, (5 Co., 1,) a lease, bearing date on the 26th of May, to hold for three years 'from henceforth,' was delivered on the 20th of June. It was resolved, that 'from henceforth' should be accounted from the day of delivery of the indentures, and not from the day of their date; for the words of an indenture are not of any effect until delivery—traditic loqui facit chartam.

So in Ozkey v. Hicks, Cro. Jac., 263, by a charter-party, under seal, bearing date on the 8th of September, it was agreed that the defendant should pay for a moiety of the corn which then was, or afterwards should be, laden on board a certain vessel. The defendant pleaded that the deed was not delivered until the 28th of October, and that on and after that day there was no corn on board; and on demurrer, it was held a good plea, because the word then was to be referred to the time of the delivery of the deed, and not to its date.

And the modern case of Steel v. March, 4 B. and C., 272, is to the same point. A lease purported on its face to have been made on the 25th of March, 1783, habendum from the 25th of March now last past. It was proved that the delivery was made after the day of the date, and the Court of King's Bench held that the word now referred to the time of delivery, and not to the date of the indenture.

At the trial in the Circuit Court, it appeared that...