28 F. Cas. 588 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1823
The proceedings in this cause in the district court were, as I understand, conformable with the practice of the courts of this state in actions upon bonds with collateral conditions. The inconvenience of such a practice is, to my mind, so striking, that had congress made no provision on the subject, I should not hesitate to adopt a different practice in this court. The inconvenience, or rather injustice, which may frequently attend the practice is, that the sum to be levied under the execution is at the will of the plaintiff’s attorney; and after the property of the defendant has been sold, and often sacrificed, under the execution, he may be very inadequately compensated by the subsequent decision of the court that the execution had issued for more than was due, and an order of restitution of the overplus. It would certainly seem to be most proper that in some way or other, this matter should be decided before the execution is permitted to issue.
The practice in relation to bonds with collateral conditions is clearly established by the twenty-sixth section of the judiciary law [1 Stat. 87], which enacts: “That in all cases brought before either of the courts of the United States, to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or non-performance shall appear by the default, or confession of the defendant, or upon demurrer, the court before whom the action is, shall render judgment therein for the plaintiff to recover so much as is due according to equity. And, when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury.” In eases, therefore, where the sum is uncertain, and a jury is requested by either party, the court may either direct a writ of inquiry to issue, or may swear a jury immediately to ascertain the sum justly due to the plaintiff. If the sum for which the judgment should be rendered be not uncertain, the court, I conceive, is to ascertain it: if uncertain, and a
There is no uncertainty as to the debt claimed by the United States. That is ascertained by the mode pointed out by the act of congress. The only question before the district court was, whether, in point of law, the sureties for William White were liable for the sums due by him as agent for the navy pension fund, and the privateer pension fund, to settle which it would seem that a jury was unnecessary, and I think improper. Still, if the charge was right, the court will not reverse the judgment for that error, as the jury was requested so to act by both parties..
Upon the question of law, I think the sureties were not liable for the sums due by William White as agent for the two last mentioned funds. The bond upon which this action is founded recites in the condition, that William White had been appointed by the secretary of war agent for paying invalid pensioners belonging to the state of Pennsylvania, and is, that he shall faithfully execute his agency. The fund for paying invalid pensioners, and those for paying the navy and privateer pensions, are perfectly distinct, raised from different sources, and the administration, and management of them are vested in different persons. The first is committed to the superintendence of the secretary of war, who is directed by law to take a bond from his agents in a penalty not exceeding $5000 for the faithful discharge of their duties. The navy pension fund was formed by a pledge of all moneys accruing to the United States from the sale of prizes, and a further pledge’ of the public faith, to make it sufficient for the purposes to which it was destined; and so much of the fund accruing from prizes which was paid prior to' the 26th of March, 1804, was placed under the management of the secretaries of the treasury, war and navy departments. That which was paid after-wards was to be disbursed by the. treasury, into which it was to be paid, pursuant to warrants’from the secretary of the navy. The fund destined for disabled seamen on board of privateers, their widows and children, was raised from a source distinct from the other two, was-paid into the treasury,- and directed to be disbursed according to the directions of the secretary of the navy. William White, who was appointed by the secretary of war agent for paying the invalid pensioners of Pennsylvania, was also appointed agent for paying the navy pensioners, by the commissioners of that fund, and agent for paying the privateer pensioners, by the secretary of the navy. Whether he gave bond to those commissioners, and to the secretary of the navy, for the faithful performance of his duties, does not appear; nor can I find any law which required such bonds to be given. But nothing can be more clear in law, in reason, and in justice, than that the sureties for his fidelity in paying away the money placed at his disposal by the secretary of war to invalid pensioners are not his sureties for his faithful disbursement of moneys put into his hands by the commissioners of the navy fund, or by the secretary of the navy for the use of privateer pensioners. It forms no part of the engagement into which they entered, and the case is in no respect varied by the circumstance that William White happened to be appointed, by the superintendents of the three funds, agent in relation to each of them. A surety can never be bound beyond the scope of his engagement^ and therefore a surety for the faithful service of B as clerk to C, who afterwards enters into partnership with D, is not liable for unfaithful conduct to C and D. 3 Wils. 532.
The acknowledgment by the sureties in their letter to the comptroller of the 7th of May, 1S21, that the balance of $3373 74 cents was due, cannot affect this question, since it is obvious that they made that acknowledgment under a mistake, which the letter of the comptroller of the 22d of December, 1820, led them into. Neither is it affected by the mortgages which they gave, as the present suit is not on the equity side of the court to foreclose the equity of redemption. If it had been, the court, upon the facts appearing in this case being’ disclosed in that, would have dismissed the bill. I am, therefore, of opinion, that the sureties in this case are not liable to the United States for the sum of $1029 55 cents, and the interest, which is claimed as due by William White on account of the navy pension, and privateer pension funds; and as the claim against him, on account of the invalid pension fund hás been satisfied, the judgment of the district court, which is in favour of the defendants, must be affirmed.