30 U.S. 114 (1831)

This suit was instituted in the Circuit Court by the United States against Thomas Tingey as one of the sureties of Lewis Deblois, who had been appointed a purser in the navy of the United States.

***The Circuit Court *** gave judgment against the United States, who prosecuted this writ of error.

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This is a writ of error to the Circuit Court of the district of Columbia, sitting at Washington. The original action was brought by the United States upon a bond executed by Lewis Deblois, and by Thomas Tingey and others as his sureties, on the 1st of May, 1812, in the penal sum of ten thousand dollars, upon condition that if Deblois should regularly account, when thereto required, for all public moneys received by him from time to time, and for all public property committed to his care, with such person or persons, officer or officers of the government of the United States as should be duly authorized to settle and adjust his accounts, and should moreover pay over, as might be directed, any sum or sums that might be found due to the United States upon any such settlement or settlements, and should also faithfully discharge, in every respect, the trust reposed in him, then the obligation to be void, &c. In point of fact, Deblois was at the time a purser in the navy, though not so stated in the condition; and there is an endorsement upon the bond, which is averred in one of the counts of the declaration to have been contemporaneous with the execution of the bond, which recognises his character as purser, and limits his responsibility as such; and the bond was unquestionably taken, as the pleadings show, to secure his fidelity in office as purser.

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There is no statute of the United States expressly defining the duties of pursers in the navy. What those duties are, except so far

as they are incidentally disclosed in public laws, cannot be judicially known to this Court. If they are regulated by the usages and customs of the navy, or by the official orders of the navy department, they properly constitute matters of averment, and should be spread upon the pleadings. It may be gathered, however, from some of the public acts regulating the departments, that a purser, or as the real name originally was, a burser, is a disbursing officer, and liable to account to the government as such. * * *

It is obvious that the condition of the present bond is not in the terms prescribed by the act of 1812, ch. 47, and it is not limited to the duties or disbursements of Deblois as purser, but creates a liability for all moneys received by him, and for all public property committed to his care, whether officially as purser, or otherwise.

Upon this posture of the case a question has been made and elaborately argued at the bar, how far a bond voluntarily given to the United States, and not prescribed by law, is a valid instrument, binding upon the parties in point of law; in other words, whether the United States have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously provided for by some law. Upon full consideration of this subject, we are of opinion that the United States have such a capacity to enter into contracts. It is in our opinion an incident to the general right of sovereignty; and the United States being a body politic, may within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers, *** To adopt a different principle, would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine, to such an extent, is not known to this Court as ever having been sanctioned by any judicial tribunal.

*** we hold that a voluntary bond taken by authority of the proper officers of the treasury department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursery of public moneys, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is in our view an incident to the duties belonging to such a department; and the United States having a political capacity to take it, we see no objection to its validity in a moral or legal view.


[However, the defendant in error pleads,] *** after setting forth at large the act of 1812 respecting pursers, *** that before the execution of the bond, the navy department did cause the same to be prepared and transmitted to Deblois, and did require and demand of him that the same, with the condition, should be executed by him with sufficient sureties, before he should be permitted to remain in the office of purser, or to receive the pay and emoluments attached to the office of purser; that the condition of the bond is variant, and wholly different from the condition required by the said act of Congress, and varies and enlarges the duties and responsibilities of Deblois and his sureties; and "that the same was under colour and pretence of the said act of Congress, and under colour of office required and extorted from the said Deblois, and from the defendant, as one of his sureties, against the form, force and effect of the said statute, by the then secretary of the navy."

The substance of this plea is, that the bond, with the above condition, variant from that prescribed by law, was under colour of office extorted from Deblois and his sureties, contrary to the statute, by the then secretary of the navy, as the condition of his remaining in the office of purser, and receiving its emoluments. There is no pretence then to say, that it was a bond voluntarily given, or that though different from the form prescribed by the statute, it was received and executed without objection. It was demanded of the party, upon the peril of losing his office; it was extorted under colour of office, against the requisitions of the statute. It was plainly then an illegal bond; for no officer of the government has a right, by colour of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with a condition different from that prescribed by law. That would be, not to execute, but to supersede the requisitions of law. It would be very different, where such a bond was by mistake or otherwise voluntarily substituted by the parties for the statute bond, without any coercion or extortion by colour of office.

The judgment of the Circuit Court is affirmed.


53 U.S. (12 How.) 98 (1851)

[The defendant in error conveyed land to a bank. To secure an indebtedness to the United States, the bank then conveyed the land to trustees for the use and benefit of the United States. The purchase price was paid from public funds. The bank's charter was subsequently vacated and, under Indiana law, all real estate held by the bank reverted to the original grantors. When the defendant in error

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