United States v. Gordon Boyd

• Decision Date: 01 January 1841
• Parties: UNITED STATES, Plaintiffs in error, v. GORDON D. BOYD and others, Defendants in error
• Court: U.S. Supreme Court

40 U.S. 187

15 Pet. 187

10 L.Ed. 706

UNITED STATES, Plaintiffs in error, v. GORDON D. BOYD and others, Defendants in error.

January Term, 1841

ERROR to the Circuit Court for the Southern District of Mississippi. Gordon D. Boyd was duly appointed a 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. On the 15th of June 1837, he gave a bond in the penal sum of $200,000, jointly and severally, with Samuel Rossdale and others, the defendants in error in the present suit. The condition of the bond was, that, whereas, the president of the United States had, pursuant to law, appointed him, the said Boyd, receiver as aforesaid, for the term of four years from the 27th of December 1836, that therefore, 'if the said 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.'

At May term 1838, a suit was instituted on this bond, by the United States, in the circuit court for the southern district of Mississippi, against the obligors, being the present defendants in error, to recover the penalty thereof. The defendants craved oyer of the bond, and afterwards of the condition, and subsequently, pleaded that the plaintiffs ought not to maintain their action, because 'the said Boyd did, from time to time, and at all times after making of the said bond, and the condition thereof, well and truly observe, perform fulfil and keep the condition of said bond, by faithfully executing and discharging the duties of his office, according to the tenor and effect, true intent and meaning of the said condition.'

At November term 1839, the United States filed an amended replication, in which they said, that they ought not to be barred from maintaining their action, because the said Boyd had not performed the condition of the said bond; and two breaches thereof were assigned.

1. That 'the said Boyd, after the 27th of December 1836, and while he was receiver, and as such receiver, received of the public moneys, large sums, viz., $59,622.60, which said sum he, then and there, wholly failed, neglected and refused to pay over to the said plaintiffs, pursuant to his instruction from the secretary of the treasury, as he was bound to do by law, and the duty of his said office of receiver.'

2. That 'the said Boyd, after the 27th of December 1836, and on divers days and times, between that day and the 30th of September 1837, while he was receiver, and as such receiver, received divers sums of the public moneys, amounting in the whole to $59,622.60, and that the said sum remained in the hands of the said Boyd, as receiver, on the 30th of September 1837; and the said Boyd, then and there, wholly failed, neglected and refused to pay the same over to the United States, pursuant to his instructions from the secretary of the treasury, as he was bound to do by law, and the duty of his office.'

To this replication, the defendants demurred, for the following causes: 1. The first breach does not state the time at which Boyd, as receiver, received the said money, after his appointment, whether before or after the date of the bond. 2. The first breach does not state that Boyd neglected to pay over any moneys received by him, as receiver, after the date of the bond. 3. The second breach does not state any time at which Boyd, as receiver, received the said money. 4. The second breach does not state that Boyd, as receiver, neglected to pay over any moneys received by him, as receiver, after the date of the bond. 5. That the replication is otherwise insufficient.

The United States joined in the demurrer, and the same was sustained by the court, and judgment thereupon entered for the defendants. The United States prosecuted this writ of error.

The case was argued by Gilpin, Attorney-General, for the United States. Davis, in behalf of Cocke, submitted a printed argument for the defendants.

For the United States, it was contended, that the breaches of the condition of the bond, by the principal obligor, were well and sufficiently set forth in the replication; and that the demurrer ought not to have been sustained.

Gilpin, Attorney-General, for the United States.—On the 27th of December 1836, the defendant, Boyd, was appointed a receiver of public moneys, at Columbus, in Mississippi, for four years. On the 15th of June 1837, and while his term of office was unexpired, the bond on which the present suit was brought was given by him and the other defendants in error, in the penal sum of $200,000, with the condition that he 'should faithfully discharge the duties of his office' of receiver of public moneys, and stating the term to be 'four years from the 27th of December 1836.'

On the first establishment of the government, in 1789, the general duty of 'superintending the collection of the revenue,' and of 'executing such services relating to the sale of the public lands, as might be required by law' (1 U. S. Stat. 65), was devolved on the secretary of the treasury. The earliest general provision (Ibid. 464), regulating, especially, the payment of moneys on the purchase of public lands, was that on the 18th of May 1796, and by that it was provided, that the purchaser was to pay one-half of the purchase-money, within thirty days, to the treasurer of the United States directly, or 'to a person appointed by the president to attend at the place of sale and receive it;' the residue was to be paid directly to the treasurer. On the 10th of May 1800 (2 Ibid. 73), land-offices were created at four places, Cincinnati, Chilicothe, Marietta and Steubenville; and it was directed, that a receiver of public moneys should be appointed at each of them, by the president, whose duties were, to receive the purchase-money from purchasers; give receipts therefor; transmit, at designated periods, accounts of the moneys received, to the secretary of the treasury; and 'within three months transmit to the treasurer of the United States, the moneys by them received.' By the same law, the secretary of the treasury was authorized to prescribe such further regulations as to the manner of keeping the books, and the accounts, as he might think proper. On the 25th of April 1812 (Ibid. 716), the general land-office was established, and all the powers and duties of the secretary of the treasury, relative to the public lands, were devolved upon the commissioner; to whom also, all returns from the land-offices were directed to be made, and by whom all accounts from them were to be settled. On the 24th of April 1820 (3 Ibid. 566), the law was passed, requiring the whole purchase-money to be paid on the day of sale, to the receiver, or to the treasurer of the United States. On the 2d of March 1833 (4 Ibid. 653), a law was passed which formed a certain portion of the lands in the state of Mississippi, purchased not long before from the Choctaws, into a land-district called the North-eastern district; and the president was directed to establish a land-office at some convenient place therein, which he might designate; and to appoint a receiver of public moneys for that office, who was to give bond according to law, and who was to perform similar duties, and be in all respects governed by the laws of the United States, providing for the sale of the public lands. This office was established at Columbus, and went into operation on the 1st of May 1833. On the 4th of July 1836 (5 Ibid. 107), the general land-office was re-organized; and it was provided, that the receivers should make to the secretary of the treasury monthly returns of the moneys received by them, and should pay over such money, pursuant to his instructions.

The various instructions that had been, from time to time, issued in regard to the various duties of the officers of the land-office, were condensed, in the year 1831, into a circular issued by the secretary of the treasury; which, so far as it relates to the payment of public moneys collected by the receivers, is as follows (2 Birchard's Land Documents 443): 'When the public money in the hands of a receiver, at the end of any month, exceeds the sum of $10,000, it should be deposited without delay. But it must not be retained, under any circumstances, in contravention of the provisions of the act of 10th May 1800, which require that the moneys received by the receivers shall be transmitted, within three months, to the treasurer of the United States, as they will thereby render themselves and their sureties liable under their official bonds. It is essential, that the public moneys in the possession of the receivers, should be deposited at the above intervals.' These instructions, which were issued by the secretary of the treasury, through the commissioner of the general land-office, have formed, ever since, the well-known guide of receivers of public moneys throughout the United States.

It will thus be seen, that, for a receiver of public moneys 'faithfully to execute and discharge the duties of his office,' he must pay over 'the public money in his hands, exceeding $10,000 once a month,' and deposit 'all the public monies in his possession' once in three months. It is not possible, that the duties required for the faithful execution and discharge of an office can be more exactly defined.

On the 30th of September 1837, the defendant, Boyd, resigned his office, having at that time in his hands, not paid over, or deposited as required by the above regulation, the sum of $59,622.60, received during the term designated in the bond. This balance, though repeatedly called upon, he has ever since refused to pay over or deposit; and at May term 1838, a suit was instituted against him and his sureties, on their official bond, to recover it. The defendants pleaded performance, and alleged that Boyd had, at all times, after the making of...