Mr. Justice McLEAN
delivered the opinion of the court.
This action was commenced in the Circuit Court for the southern district of New York, against the sureties of Swartwout, late collector of the customs at that city.
Swartwout was appointed collector by the President, the 1st of May, 1829; and continued to serve under such appointment until.the 28th of March ensuing. ■ On the 29th March, 1830, his nomination was sanctioned by the Senate, and he continued to serve in the office of collector four years. On'the 29,th March; 1834, he wa§ again appointed .by the President arid Senate, for the term of four years.
Under each of the above appointments he gave bond and security, which, after reciting his appointment of collector, &c. provided : “ Now, therefore, if the said Samuel Swartwout, hath • truly and faithfully executed and discharged, and shall continue truly and faithfully to discharge; all the duties of the said office according to law, then,” &c.
The borid on which this suit was brought, is dated the 22d June, 1830.
A transcript, of the .accounts of Swartwout from the commencement to the termination of his service as collector, was giveri in evidence, and also a transcript which purports to state the Tesponsibilities arising under the second term of his service.
At the commencement of his secpnd term, a large balarice was charged against him, arising under the previous term; and at the commencement of the third term, a balance was charged,.’as arising under the second term.
In the course of the trial the two following points were raised, on which the judges were opposed - in opinion, and the questions were certified to this court.
“
1. Whether the said transcript from the books and proceedings of trie Treasury, given in evidence, on the part of the United
States, to show the indebtment of said Swartwout, on' the 28th of. March, 1834, on which day the second term of office of said Swartwout expired, was in this case competent and legal evidence for that purpose;” ■
“ 2. • Whether the payments made.by said Samuel Swartwout, subsequently to the said 28th day of March, 1834, should be applied to' the discharge of his indebtment existing on the said 28th day of March, 1834, or accruing, during his said second term of office, nr whether such payments should be applied to the dis* . charge of his indebtment accruing- after that time.”
By the act of the 2d of March, 1799, collectors of the customs are required,
<c
once in every three months, or oftener if directed, to transmit their accounts for settlement, to the officer, or-officers whose duty it shall be to make such settlement.”
From the transcripts in this case, and the deposition of the late comptroller, it appears that until after 1838, the accounts of collectors of the customs were kept at the Treasury-in one continued series of debits and credits, without regard to the terms of the appointments: or the different sureties involved.
By-the act of May 15th, 1820, the term of appointment of collectors.óf the customs and other officers named, was limited to four years. Prior to that act, such appointments were made without any limitation - as to time, except. the pleasure of the President.
The 2d section of the act. of 3d March,-1797, .provides, that, “ in every case of delinquency, where suit has been, or. shall be, instituted, a- transcript from the books and proceedings of the Treasury, certified by the register, and authenticated under-the seal of the-department, shall-be admitted as evidence,” &c. By the 11th section of the act of the 3d March, 1817, the; auditors - of the-War and NaVy Departments were authorized to certify accounts the same as the register.
' Before the points certified are examined, we will consider the principles involved in the case.
Under the act of 1820, collectors can only be -appointed for four years. At the end of this term the office becomes vacant, and must be filled by a new appointment. And' each collector is required to give bond and security on entering upon the duties of his appointment; in such sum as shall be designated.
That the collector is responsible for all moneys received by him and not accounted for, without reference to the official, terms he may have served, or to any bonds he may have executed, is undoubted. But this is- not the case with his sureties. They are responsible only, for the faithful performance of his duties, for the term of his appointment. The condition of the bond is, that, he hath performed his duties faithfully, and that he shall continue to perform them. But this condition does not extend to his delinquencies under any other appointment.
The bond in question is dated the 22d of June, 1830, and, relates to the 29th of March preceding, at which time the terra of the collector commenced; and its obligation extends to the. 29th of March, 1834. That the, sureties are not bound beyond this period, is too clear for controversy. As regards their liability, it is the same as if Swartwout had served only the term covered by their bond. For the faithful performance of his duties under the . executive appointment, which preceded the above term, Swartwout gave bond and. sécurity; and also, under the new appointment for four years, which he served from the 29th March, 1834. So far as the sureties are concerned, these terms arq as separate and distinct as if a different individual had filled each, one of them.
The extent of the obligation of the sureties being stated, we are brought to the inquiry, “ whether the transcript, given in evidence, on the part of the United States to show the indebtment of Swartwout, on the 28th of March, 1834, was legal evidence.”
. The transcript is certified in the form required by the act.of Congress. In the argument no objection was stated, as. to the ‘ mode of its authentication. But the re-statement of the account' by the .Treasury officers, showing the liabilities incurred by the collector during the term for which the defendants are bound as sureties, is objected to.
The collector is also a disbursing officer. He is charged with thé bonds taken.for duties, and is credited for stuns paid into the Treasury, and also , for drawbacks arid other disbursements incident to his office,- or which have been made under the order of the Treasury Department. But from the continuous mode of keeping his accounts, without regard to the terms he' may have served, the defalcation within any one term does not appear.
. At the commencement of each term an amount is charged against the collector, but it may be composed of'bonds in suit, not due, and deposited specially, as is found by the items'first charged in the general transcript, amounting to more than .eleven millions of dollars. The balance, charged, therefore, at- the commencement of any quarter or term, does not show that the collector is in default. . He may, indeed, stand charged with money actually paid into the Treasury by him, but forwhich.he.has received no credit, as what is called a covering warrant has not' been issued.
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Mr. Justice McLEAN
delivered the opinion of the court.
This action was commenced in the Circuit Court for the southern district of New York, against the sureties of Swartwout, late collector of the customs at that city.
Swartwout was appointed collector by the President, the 1st of May, 1829; and continued to serve under such appointment until.the 28th of March ensuing. ■ On the 29th March, 1830, his nomination was sanctioned by the Senate, and he continued to serve in the office of collector four years. On'the 29,th March; 1834, he wa§ again appointed .by the President arid Senate, for the term of four years.
Under each of the above appointments he gave bond and security, which, after reciting his appointment of collector, &c. provided : “ Now, therefore, if the said Samuel Swartwout, hath • truly and faithfully executed and discharged, and shall continue truly and faithfully to discharge; all the duties of the said office according to law, then,” &c.
The borid on which this suit was brought, is dated the 22d June, 1830.
A transcript, of the .accounts of Swartwout from the commencement to the termination of his service as collector, was giveri in evidence, and also a transcript which purports to state the Tesponsibilities arising under the second term of his service.
At the commencement of his secpnd term, a large balarice was charged against him, arising under the previous term; and at the commencement of the third term, a balance was charged,.’as arising under the second term.
In the course of the trial the two following points were raised, on which the judges were opposed - in opinion, and the questions were certified to this court.
“
1. Whether the said transcript from the books and proceedings of trie Treasury, given in evidence, on the part of the United
States, to show the indebtment of said Swartwout, on' the 28th of. March, 1834, on which day the second term of office of said Swartwout expired, was in this case competent and legal evidence for that purpose;” ■
“ 2. • Whether the payments made.by said Samuel Swartwout, subsequently to the said 28th day of March, 1834, should be applied to' the discharge of his indebtment existing on the said 28th day of March, 1834, or accruing, during his said second term of office, nr whether such payments should be applied to the dis* . charge of his indebtment accruing- after that time.”
By the act of the 2d of March, 1799, collectors of the customs are required,
<c
once in every three months, or oftener if directed, to transmit their accounts for settlement, to the officer, or-officers whose duty it shall be to make such settlement.”
From the transcripts in this case, and the deposition of the late comptroller, it appears that until after 1838, the accounts of collectors of the customs were kept at the Treasury-in one continued series of debits and credits, without regard to the terms of the appointments: or the different sureties involved.
By-the act of May 15th, 1820, the term of appointment of collectors.óf the customs and other officers named, was limited to four years. Prior to that act, such appointments were made without any limitation - as to time, except. the pleasure of the President.
The 2d section of the act. of 3d March,-1797, .provides, that, “ in every case of delinquency, where suit has been, or. shall be, instituted, a- transcript from the books and proceedings of the Treasury, certified by the register, and authenticated under-the seal of the-department, shall-be admitted as evidence,” &c. By the 11th section of the act of the 3d March, 1817, the; auditors - of the-War and NaVy Departments were authorized to certify accounts the same as the register.
' Before the points certified are examined, we will consider the principles involved in the case.
Under the act of 1820, collectors can only be -appointed for four years. At the end of this term the office becomes vacant, and must be filled by a new appointment. And' each collector is required to give bond and security on entering upon the duties of his appointment; in such sum as shall be designated.
That the collector is responsible for all moneys received by him and not accounted for, without reference to the official, terms he may have served, or to any bonds he may have executed, is undoubted. But this is- not the case with his sureties. They are responsible only, for the faithful performance of his duties, for the term of his appointment. The condition of the bond is, that, he hath performed his duties faithfully, and that he shall continue to perform them. But this condition does not extend to his delinquencies under any other appointment.
The bond in question is dated the 22d of June, 1830, and, relates to the 29th of March preceding, at which time the terra of the collector commenced; and its obligation extends to the. 29th of March, 1834. That the, sureties are not bound beyond this period, is too clear for controversy. As regards their liability, it is the same as if Swartwout had served only the term covered by their bond. For the faithful performance of his duties under the . executive appointment, which preceded the above term, Swartwout gave bond and. sécurity; and also, under the new appointment for four years, which he served from the 29th March, 1834. So far as the sureties are concerned, these terms arq as separate and distinct as if a different individual had filled each, one of them.
The extent of the obligation of the sureties being stated, we are brought to the inquiry, “ whether the transcript, given in evidence, on the part of the United States to show the indebtment of Swartwout, on the 28th of March, 1834, was legal evidence.”
. The transcript is certified in the form required by the act.of Congress. In the argument no objection was stated, as. to the ‘ mode of its authentication. But the re-statement of the account' by the .Treasury officers, showing the liabilities incurred by the collector during the term for which the defendants are bound as sureties, is objected to.
The collector is also a disbursing officer. He is charged with thé bonds taken.for duties, and is credited for stuns paid into the Treasury, and also , for drawbacks arid other disbursements incident to his office,- or which have been made under the order of the Treasury Department. But from the continuous mode of keeping his accounts, without regard to the terms he' may have served, the defalcation within any one term does not appear.
. At the commencement of each term an amount is charged against the collector, but it may be composed of'bonds in suit, not due, and deposited specially, as is found by the items'first charged in the general transcript, amounting to more than .eleven millions of dollars. The balance, charged, therefore, at- the commencement of any quarter or term, does not show that the collector is in default. . He may, indeed, stand charged with money actually paid into the Treasury by him, but forwhich.he.has received no credit, as what is called a covering warrant has not' been issued. Until this shall be done the credit cannot, by the usage of-.the department, be given.
To meet the necessary disbursements, a sufficient sum of money should always be under the control .of the collector. A11*! it is understood to .be the usage of the collector, under the sanction of the department, to retain such sum.
■From this, it appears that the general transcript affords no sufficient data on which to charge the sureties for any term of office, where, as in the present case, the same- person has served as collector several terms.
It is contended that the duties of the Treasury officers charged with.the settlement of .these accounts are in their nature, judicial ;= and that when an'accouht' is once settled it is conclusive on the government, and can only be opened for .correction by a suit in . court. Thát in' the .present case, as credits were given in the account current, which more .than,paid-the moneys, received .within the .four years .under examination,.the sureties must stand discharged of all liability. And, that although these payments were in part made from moneys received, after, th'e expiration of the above term, the .credit must stand as entered.
If this be a sound argument, by the mode of keeping these as counts-in the Treasury Department, all 'sureties of, collectors, except those for th.e last term, are discharged.. And it is supposed that this construction would impose no- hardship or injustice on the last securities; that, as the bond binds them for the .'past as well as the future conduct of the collector, they must inquire what amount is charged against him at the commencement of the term for which they are bound-.
Now the retrospective obligation Of the bond is as much limited by the term of the new appointment as th.e prospective. .And in
this view'it would be as logical and' just to hold that the sureties are'liable for defalcations after the expiration of the term as for those which occurred before its commencement. There is no such condition in the instrument. It recites-the new appointment, • and, by consequence, limits the obligation to the term of office fixed by law.
The rulé as to the appropriation of payments by debtor or-creditor in' the ordinary transactions of business, is .earnestly relied on as applicable to the present case. And all the. leading authorities on this, subject- are referred to. In the case of Devaynes
v.
Noble, &c., 1 Mer. 606, the doctrine which governs the application of. payments, was elaborately considered. But ..the applicability of this doctr'ihe is not admitted. We think the rule established'by'this court in- the case of the United States
v.
January and Patterson, 7 Branch, 572, is the true one. In. that case the court.say: “ The debtor has the option, if he think fit to exercise it, and may direct the application of any-particular payment at' the time of making it. If he neglects to make' the application,-' the.creditor may make it; if he also neglects to apply the payment, the law will'-make the application.” . But the court add, “A majority of the court is of opinion -.that the rale adopted in ordinary cases is not applicable to .a case where different sureties under distinct obligations are interested.”
The Treasury officers are the agents, of the law. It regulates their .duties, as it does the duties'and. rights of the collector and ■ his sureties. The officers' of the Treasury .cannot, by any exercise ' of their discretion, enlarge or restrict the obligation of the collect- or’s bond. Much less can they, by the mete, fact of keeping an account current, in-which debits and credits are entered as they occur; and without any express appropriation o'f payments, affect ' the rights of sureties. The collector is a mere agent or trustee of the government. He holds the .money he receives in trust, and inbound to pay it over to. the government as the law requires.^ And in' theffaithful performance of this trust the sureties have a direct-interest,-arid their.rights cannot be disregarded.- It is true, as argued, if the collector shall misapply the public funds, his sureties'axe responsible;. But that is not the question under com sideration; The collector-. does .riot misapply the funds in his hands; but pays them .over to- the government, without any spe
cial direction as to their' application, "Can the Treasury officers say, under such circumstances, that the funds currently received . and paid over shall be appropriated in discharge of a defalcation which occurred long before the sureties were bound for the col- - léctor, and by such appropriation.hold the sureties' liable for thfe amount? The statement of the case is the best refutation of the argument. It is' so unjust to' the sureties, and so directly in conflict with the law and its policy, that it requires but little consideration.
If the collector be in default for a preceding term, it is the duty of the Treasury Department to require payment from him and his sureties for that term. ' To pay such defalcation out of accruing receipts during' a subsequent term, even with the assent of the collector, would be a fraud upon the sureties for such term. The money in the hands of the collector is not his money. Without ' a violation of his duty, he cannot appropriate it as such. He ' pays it over in the performance of his duty — the duty which the sureties have undertaken that he shall faithfully perform. And-shall the sureties not be exonerated? The collector has done all; that they stipulated hé should do. How, then, can they be made responsible ? It is-contended that their responsibility arises, not' from the default of the'collector, but from the'appropriation of his payments by the Treasury. This, at least, is the fair result of the • doctrine' advanced. For, if such appropriation is properly made'by the Treasury, in payment'of a defalcation of the collector before the commencement of the current term, it must fol- • low that the sureties.for such term aré responsible for the amount thus paid.
The government must show the amount of the defalcation ■ of the collector during the term for which the defendants weresureties, to' charge them; and this is not done on the face- of the general transcript.' It is necessary, therefore, to have a re-statement of the account for'this purpose: This re-statement does not.falsify the general account, but arranges the items of debits and credits so as to exhibit the transactions of the collector during the four ' years in question. Whether this be done-by depositions, or in the form of a transcript, may not be material.
We think that the transcript or re-statement'of the account, as' .' explained by the depositions, was competent evidence to the jury.
This statement, as appears from' the deposition of Tarbutt, is defective in not giving all the credits to which the collector was .entitled; but as it relates to.the matter in controversy, it is.evidence'. The jury will determine what effect- it shall have.
The amount charged to the collector, at the commencement of the term, is only
prima facie
evidence against the sureties. If they can- show by circumstances or' otherwise, that the balance charged in whole or in part had' been misapplied-'by the collector .prior to the new appointment, they are. not liable for the. sum so misapplied. If the sum charged consists of duty- bonds, the defendants may Show that the bonds were never paid. These remarks apply'to the sureties under every new appointment of the collector, and to the- balance charged agaiiist him.
Oh the 29th of March, 1834, a new official term of Swartwout commenced, and new securities were given. On .that day a large apparent balancé was due tothe go’/erhment byhim. Now the inquiry should be, of what did that balance consist? Did it arise from a misapplication of .the public money during the preceding term? If so, the sureties of the preceding term are liable ■for the amount thus misapplied. But if there was no misapplication of the public money by the collector, and he paid over to .the government,, or to its order, all' the moneys he received .-during the official term for which the defendants were his sureties, however such payments may have been appropriated by the • Treasury, the sureties are discharged.
In answer to the-question,
“
whether the payments made by the collector, subsequently to the 28th of March, 1834,.should be appropriated in discharge of his indebtment on that day,” we- say, that so far as such payments were made of moneys accruing and received in the subsequent.term, they should not be so /applied. But so -far as payments were made in the subsequent term of moneys'received On duty bonds or otherwise, which remained charged to-the collector, as of the preceding official term, such payments should be appropriated in discharge of the indebtment of the collector for that term. The sureties are only responsible for a misapplication of the public money during the four years-preceding the 29th of March, 1834. And of course the extent of this responsibility must he shown by the government. As before remarked, the' Court consider the. official terms as distinct • and
separate,- in regard to the sureties, as if different persons," had served in the three terms specified; that the legal responsibilities of the sureties are not and cannot be affected by any action of the Treasury Department. If liable, the sureties are made so by their contract; and the government, being a party to that contract, cannot, without the consent of the defendants, change- its' legal or equitable effect.'
ORDER.
This cause came on to be heard on the transcript of the record from the Circuit' Court of the United States for the Southern district of New York, and on the points and questions on which the judges of the said Circuit- Court were. opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued 'by counsel. On consideration whereof, it is the opinion of thisc Court,
1st, That" the transcript from the books arid proceedings of'the-Treasury, given in evidence on the part .of the United States, to show the. indebtedness of Samuel Swartwout on the 28th day of March, .-1S34, on which day the second term of office of said Swartwout expired, was,-in this case, competent and legal evidence.
2d-, That the payments made by said Samuel Swartwout subsequently to .the said 28th day of. March, 1834, should be appropriatéd iri discharge of his indebtedness on that day, so far as said payments were made, in the subsequent term, of moneys received on duty .bonds or otherwise, -which remained charged to the collector as of the preceding.official term; but not where such payments were-made of moneys accruing and received^ in the subsequent term.
: Whereupon it is now here ordered and adjudged by this Court, that ft. be so certified to the said Circuit Court. -