The United States, Plaintiffs In Error v. Phineas Bradley, Surviving Administrator of David Ott Deceased

• Decision Date: 01 January 1836
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR v. PHINEAS BRADLEY, SURVIVING ADMINISTRATOR OF DAVID OTT DECEASED
• Court: U.S. Supreme Court

35 U.S. 343

10 Pet. 343

9 L.Ed. 448

THE UNITED STATES, PLAINTIFFS IN ERROR v. PHINEAS BRADLEY, SURVIVING ADMINISTRATOR OF DAVID

OTT DECEASED.

January Term, 1836

THE United States, in August 1825, instituted an action of debt in the circuit court of the district of Columbia, in the county of Washington, against Phineas Bradley and Andrew Way, administrators of David Ott; upon a joint and several bond to the United States of North America, executed by John Hall, David Ott and Nicholas Vanzandt, on the 26th day of May 1819. The condition of the bond was, 'that whereas the above bounden John Hall is appointed paymaster of the rifle regiment, in the army of the United States aforesaid; now, if the said John Hall shall well and truly execute, and faithfully discharge, according to law, and to instructions received by him from proper authority, his duties as paymaster aforesaid, and he, his heirs, executors or administrators, shall regularly account, when thereto required, for all moneys received by him from time to time, as paymaster aforesaid, with such person or persons as shall be duly authorized and qualified on the part of the United States for that purpose; and moreover pay into their treasury, such balance as, on a final settlement of the said John Hall's accounts, shall be found justly due from him to the said United States, then this obligation shall be null, void and of no effect: otherwise, to be and remain in full force and virtue.'

To this declaration the defendants pleaded six several pleas, and issues were joined on the second, fourth and sixth. The third plea alleged that the defendants ought not to be charged with the debt, by virtue of the supposed writing obligatory, because John Hall was appointed paymaster long after the 24th of April 1816, and after the passing of the act of congress, entitled 'an act for organizing the general staff, and making further provision for the army of the United States;' and that this was the only law authorizing or requiring a bond to be given by him to the United States as paymaster, or otherwise, or authorizing any person to take such a bond; and that the said John Hall, as such paymaster, did not, after being appointed paymaster, or at any time give any bond whatsoever to account for all moneys and public property which he might receive, in such sums as the secretary of war should direct, or otherwise, in pursuance and execution of the said act of congress; and that the said John Hall had not, at any time after he was appointed such paymaster as aforesaid, any right, title or authority whatsoever, as such paymaster, or in virtue of such his appointment, or otherwise howsoever, to receive any money or property of the United States, or any public money or public property whatsoever, to be accounted for in pursuance and execution of the said act of congress, or otherwise, to the said United States or to the government, or any officer of the government of the said United States, or to any other person or persons whatsoever, in the name, or for or in behalf of the said United States; nor in any manner to enter on the duties of his said office or appointment of paymaster, or to do, perform or execute the duties, or any of the duties of the same.

To this plea the United States replied, that by an act of congress, entitled 'an act for organizing the general staff, and making further provision for the army of the United States,' passed on the 24th of April 1816, it was, among other things, enacted, that all officers of the pay, commissary and quartermaster's department, should, previous to their entering on the duties of their respective offices, give good and sufficient bonds to the United States, fully to account for all moneys and public property which they might receive, in such sums as the secretary of war might direct; and that after the passage of the said law, and while the same was in full force and effect, on the 26th of May 1818, the said John Hall was duly appointed paymaster in the rifle regiment, in the army of the United States, and in consequence of his appointment as paymaster aforesaid, and with the intent of complying with the act of congress aforesaid, and by the direction of the secretary of war of the United States, he, the said John Hall, with David Ott, now deceased, and the said Nicholas B. Vanzandt, did execute and deliver, in due form of law, the said writing obligatory in the said defendant's plea mentioned; and the same was then and there accepted by the said United States; and the said John Hall, after the same was so accepted as aforesaid, and under and by virtue of his appointment as aforesaid, did enter upon the performance of the duties of paymaster as aforesaid, and did from time to time receive from the United States, as such paymaster as aforesaid, sundry large sums of money, amounting altogether to more than _____ dollars, to be accounted for by him as such paymaster as aforesaid; and the said United States say, that of the moneys so received by him the said John Hall, of the United States as aforesaid, the sum of _____ dollars was altogether unaccounted for by him, the said John Hall; and that upon a final settlement of the accounts of him, the said John Hall, as paymaster aforesaid, by the proper officers of the government of the United States, there was found to be due from the said John Hall to the United States on account of moneys received by him of the United States as paymaster aforesaid, the sum of _____ dollars, which said sum the said John Hall, in his lifetime, and the said defendants since his death altogether failed to pay to the said United States.

The defendants demurred to this replication, and assigned for causes of demurrer:

1. That the bond, with the conditions thereof, was not taken in pursuance of the directions, nor under the authority of the act; but was essentially different in its purport and effect from the same.

2. That in the replication, the plaintiffs have not averred nor shown any authority for taking the bond with the condition, nor for the delivery and acceptance of the same; but they have shown the same was not taken and delivered and accepted as such bond.

3. That the bond, as described and set forth in the declaration, varies from the supposed writing obligatory, in this, that it purports to be an obligation to the United States, without ascertaining what United States; and further, purports to be the simple obligation of the said David Ott to pay the United States the sum of twenty thousand dollars: whereas the supposed writing obligatory purports to be an obligation to some states, described as the United States of North America; and further purports to be an official bond to the last named states, executed by one John Hall, the said David Ott, and one N. B. Vanzandt, the two last as sureties for said Hall's performance of certain official duties to the last named states, as set forth in said condition; and further purports to be a bond which the government of the United States of America, or any officer or agent of said government, had no power or authority to take or accept in behalf of the last named United States.

4. That it does not appear in the replication that the bond had been delivered by the obligors, or any of them, or accepted or received by any person on behalf of the last named United States, by any lawful authority; but the contrary appears.

5. That it does not appear from the replication that John Hall had, at any time after his said supposed appointment to the office of paymaster, any right, title or authority to enter on the duties of the said office, or to receive, in virtue of such appointment, any money or property of the said United States, or any public property or public money whatever; to be accounted for to the said United States, or to the government, or any officer or agent thereof, or otherwise to perform and execute the duties, or any of the duties of such office: nor that he had lawfully and officially received any such property or money, and failed to account for the same, or otherwise broken the said condition; but the contrary appears.

6. That the bond and condition are illegal and defective in form and substance, and altogether void and contrary to law.

The fifth plea set forth that the defendants ought not to be charged, because John Hall was appointed a paymaster a long time after the act of congress of the 24th of April 1816, entitled 'an act for organizing the general staff,' &c., and that at the time of his appointment that act was and yet is in force, and was and yet is the sole and only law, rule and regulation, or authority, under which any bonds to be given by John Hall to the United States as paymaster, or in any manner, can be taken by the United States, or by any officer of the same in the name and behalf of the United States; and was and is the only law, &c. by which his accountability as paymaster for any money or property of the United States by him received was or is prescribed, regulated or governed; and that the said John Hall did fully account for all moneys and public property by him as such paymaster as aforesaid, and after he was appointed such paymaster, received in such sums as the secretary of war, in the said act of congress mentioned, did, at any time after the said John Hall was so appointed as aforesaid, direct to be so received by the said John Hall as aforesaid, according to the tenor and effect, true intent and meaning of the said act of congress.

To this plea the United States replied, that John Hall, after being appointed paymaster of the rifle regiment in the army of the United States, did, from time to time, receive as such paymaster large sums of money, amounting to _____ dollars, to be accounted for by him, and of this amount the sum of _____ dollars was altogether unaccounted for by him: and that upon a final settlement of his accounts as paymaster, by the proper officers of the treasury, he was found...