United States v. Vanzandt

28 F. Cas. 365, 2 Cranch 338

Opinion

THE COURT

(MORSELL, Circuit Judge, contrá)

admitted the bond and account thus-certified, to be read to the jury as evidence of the amount due from Hall to the United States. The- attorney for the United States further gave in evidence, a statement of the charges against the paymaster, on the books of the paymaster-general’s office, and the transmission of accounts, vouchers, and estimates by him to that office, and also gave evidence to prove that the statement was correctly made from the books of the paymaster-general, and also sundry original letters from the said Hall, to the paymaster-general; and the original entries in the books of the second auditor, showing that several settlements of his accounts were made at sundry times by the second auditor. He also gave evidence that the moneys advanced to the said Hall, were to have been ■ disbursed by him in the Western country, namely, at St. Louis, in Missouri; to all which evidence the counsel for the defendant objected that it was not competent or admissible to charge this defendant in this action.

But THE COURT (MORSELL, Circuit Judge, contra) overruled the objection, and; permitted the evidence to be given to the jury. Whereupon the counsel for the defendant prayed the court to instruct the jury, that if from-the said evidence they should believe that the said Hall had neglected and failed to make any report or reports to the paymaster-general-once in two months, showing the disposition of the funds, previously transmitted, with estimates for the next payment of the regiment, and had also neglected and failed either to-transmit such estimates, or to render his vouchers to the paymaster-general for settlement, more than six months after receiving funds, and was not recalled for such default and neglect; but additional funds were placed in his hands, notwithstanding his known defaults- and neglects in the instances aforesaid, then the defendant in this action is not chargeable-for any failure of the said Hall to account for such additional funds, so placed in his hands,, after his said defaults and neglects in respect of funds previously received, were known as aforesaid. By the 4th section of the act of April 24, 1816, c. 69 (3 Stat. 297), “for organizing the general staff,” &c. (pamphlet, p. 72), it is enacted: “That it shall be the duty of the regimental and battalion paymasters to-pay all the regular troops; and to insure punctuality and responsibility, correct reports shall be made to the paymaster-general, once in two months, showing the disposition of the funds previously transmitted, with accurate estimates for the next payment of such regiment, garrison, or department, as may have been assigned to each; and whenever a paymaster-shall fail to transmit such estimate, or neglect to render his vouchers to the paymaster-general for settlement of his accounts, more-than six months after receiving funds, he shall be recalled, and another appointed in his place.”

NOTE. This decision was reversed by the supreme court of the United States (11 Wheat. [24 U. S.] 184), upon the authority of the case of U. S. v. Kirkpatrick. 9 Wheat. [22 U. S.] 720, which was not decided until the 17th of March, 1824, seventeen months after the decision of this court in this case. Mr. Jones and Mr. Key, for defendant.

The act of congress is peremptory, that if the paymaster fails to report for six months, he shall be recalled. If the government1 fails to recall him, his sureties are discharged from all further liability. The government did not rely on his bond only, but on his frequent accounting. The sureties knew this and relied upon the government’s discharging its duty in removing a delinquent paymaster. It was part of their security, and entered into their contract. It stands upon the same principle as the case of a creditor giving further time to his debtor without the consent of the surety. Nisbet v. Smith. 2 Brown, Ch. 579; Rees v. Berrington, 2 Ves. Jr. 540; and in Law v. East India Co., 4 Ves. 824, the master of the rolls says: “AVhere any act has been done by the obligee that may injure the surety, the court is very glad to lay hold of it, in favor of the surety.” So a sale at any other place than that which is required by the agreement, releases the surety. Ludlow v. Simond, 2 Caines, Cas. 49, 57. Equity will not bind a surety who is not bound at law. The bond is supposed to be made in reference to the act of congress. Neg-gleet of a superior officer to remove a loan officer in New York, upon his default, discharged the surety. People v. Jansen, 7 Johns. 332.

Mr. Swann, contra.

The act of 1816, was only directory to the executive officers. It left a discretion with the president. So long as Hall continued to be paymaster de facto, his sureties were liable. He was constitutionally appointed by the president, who alone had the power of removal. He held his office at the will of the president, and that will could not be controlled by congress. The president was to decide whether the paymaster had complied with the terms of the act of congress, or not, and to remove him, or not, at his discretion. He continues in office until removed by the president, and until so removed his sureties are liable by the express condition of their bond. The New York cases have gone further in discharging sureties than we have here or in Virginia. The case in 2 Caines, Cas., supra, was decided upon the ground that the sale was not made according to the agreement of the parties. The ease of People v. Jansen was decided upon the ground of fraud on the part of the supervisors, and fraudulent concealment of the default of the loan officers.

THE COURT (THRUSTON, Circuit Judge, doubting) gave the instruction as prayed by the defendant’s counsel, principally upon the authority of the case of People v. Jansen, 7 Johns. 332.