ERROR to the circuit court of the district of Columbia, for the county of Washington.
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 declaration first filed was in the common form of debt on a joint and several bond, and the defendants prayed oyer of the bond and condition, and pleaded eight several pleas. On the first, second, and seventh pleas, issues in fact were joined; and to the other pleas the United States demurred generally. The circuit court overruled the demurrers and gave judgment against the United States, who prosecuted this writ of error.
Pending the pleadings, the district attorney of the United States filed another count to the declaration, in which the bond and the condition were set forth, with averments that Lewis Deblois was a purser in the navy of the United States; that he received large sums of money in that capacity, and that he had refused to account for the same, according to the provisions of the laws of the United States, &c. By agreement of counsel all the pleadings were considered as applicable to this as well as to the first count in the declaration.
The bond was executed on the 1st day of May 1812 by Lewis Deblois, Thomas Tingey, Franklin Wharton, Elias B. Caldwell, William Brent and Frederick May, in the sum of ten thousand dollars. The condition was as follows:
'The condition of the above obligation is such, that if the said above bound Lewis Deblois shall regularly account, when thereunto 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 shall be duly authorised to settle and adjust his accounts; and shall moreover pay over, as he may be directed, any sum or sums that may be found due to the United States upon such settlement or settlements, and shall faithfully discharge in every respect the trust reposed in him, then the obligation to be void and of no effect, otherwise to remain in full force and virtue.'
The following indorsement was made upon the bond:
'It is expressly understood and agreed between the secretary of the navy (acting in behalf of the United States) and the within named obligors, that the said obligors and not to be held responsible for any loss that may be sustained in the moneys or public property committed to the care of the within named Lewis Deblois as purser, by any capture, sinking or stranding, or other unavoidable casualty; or if, by any such circumstance or event, the said purser should be deprived of his books and papers, and be thereby rendered incapable of producing the necessary evidence or means of accounting for the public money or property with which he may be charged, the said obligors shall be exonerated on producing satisfactory evidence of the facts, unless it can be shown that the money or public property has been misapplied or diverted from the public service.'
The third plea demurred to by the United States set forth, that 'every neglect, failure or omission whatsoever of the said Lewis Deblois regularly to account, as in and by the said condition is required, and to pay over such sum or sums of money as in and by the said condition is also required, or in any other manner or respect whatsoever to discharge the trust reposed in him, as in and by the said condition is also required, was caused by and the direct consequence of the gross and wilful neglect and wrong and illegal acts of the proper officers of the government of the United States, under whose control and direction all the public moneys and public property received by the said Lewis Deblois, and committed to his charge, at any time or times, after the sealing and delivery aforesaid, were placed by the authority of the plaintiffs, and who were duly authorised to settle and adjust his accounts, and to superintend, direct and control the discharge of the trust reposed in him as aforesaid, to the manifest and grievous injury and defrauding of the said defendant, &c.'
The fourth plea alleged, that after the 13th day of March 1812, and before the 1st day of May in the same year, and before the execution of the bond, Lewis Deblois was duly appointed a purser in the navy, and continued in the service until the 1st of March 1817, and continued and so continues in the service, and to discharge the duties of purser, and that all the moneys and all public property received by him, or for which he was accountable after the execution of the bond, were received by him and committed to his care as such purser in virtue of his said appointment, and in discharge of the trust reposed in him as such purser, and not otherwise, and that no money or public property was committed to him but as purser under the said appointment. And, &c.
The fifth plea alleges that the defendant ought not to be charged with the said writing obligatory, or any thing therein contained, because the act of congress of the 13th day of March 1812 required, that the pursers in the navy of the United States, shall be appointed by the president of the United States by and with the advice and consent of the senate; and from and after the 1st day of May next, no person shall act in the character of purser who shall not have been thus first nominated and appointed, excepting persons on distant service, who shall not remain in service after the 1st day of July next, unless nominated and appointed as aforesaid. And every person, before entering upon the duties of his office, shall give bond with two or more sufficient sureties, in the penalty of ten thousand dollars, conditioned faithfully to perform all the duties of purser in the navy of the United States, which said law was in full force and unrepealed on the 1st day of May in the said year, when the said obligation was so as aforesaid executed and delivered. And the said defendant further says, that protesting that the said Lewis Deblois was not so appointed by the president of the United States by and with the advice and consent of the senate, as in and by said act of congress is required; yet he further says, that after the passing of the said act, and before the day of the date of the ensealing and delivery of the said writing obligatory, the navy department of the United States did cause the said writing obligatory to be prepared, and to be transmitted to the said Lewis Deblois, and did require and demand of him that the said writing obligatory, and the condition thereunder written, should be executed by the said Lewis Deblois, with sufficient sureties, before he should be permitted to remain in the said office of purser, or to receive the pay and emoluments attached to said office of purser; and the said defendant further in fact says, that the said condition so as aforesaid underwritten is variant and wholly different from the condition required in and by the said act of congress, and varies and enlarges the duties and responsibilities of the said Lewis Deblois and his sureties, and that the same was under colour and pretence of said act of congress, and under colour of office required and extorted from Lewis Deblois, and from the defendant as one of his sureties, against the form, &c. of the statute by the then secretary of the nevy, wherefore he says the said writing obligatory is void and illegal, and this, &c.
The sixth plea alleges that the condition of the bond is wholly variant and different from the condition which by law ought to have been required, and imposed other and different responsibilities upon Deblois and on his sureties, and that the said writing obligatory and the condition was prepared by and under the directions of the secretary of the navy of the United States, and was by him transmitted to Deblois, and he, Deblois, was then and there required to execute the same and the illegal condition, before he would be deemed and recognized as a purser in the navy of the United States, or permitted to receive any pay or emoluments as such, under colour and pretence of law, and under colour of the office of the said secretary of the nevy; whereby, as the defendant averred, the said writing obligatory, and the condition there underwritten is wholly void and of no effect. And this, &c.
The eighth plea alleges that the United States ought not to maintain their action, because by the act of congress of 13th March 1812, it was among other things enacted, that every purser, before entering upon the duties of his office, shall give bond with two or more sufficient sureties, in the penalty of ten thousand dollars, conditioned faithfully to perform all the duties of purser in the navy of the United States, which said act of congress was in full force and unrepealed at the time when the said Lewis Deblois was appointed purser in the navy, and also at the time when the said writing obligatory was sealed and delivered by this defendant, and for a long time thereafter, to wit until 1817; and the defendant says, that the said Deblois, before entering upon the duties of his office or at any time thereafter, was not required to give bond in manner and form as is prescribed as aforesaid, nor did he give such bond; without this that the said Deblois received any funds, property or money from said plaintiffs, in any other right, capacity or character, than as such purser, or was in any other right, capacity or character, bound to keep, preserve, disburse and account for the same. And this, &c.
The case was argued by Mr Berrien, attorney general, and Mr Swann, district attorney, for the United States; and by Mr Coxe and Mr Jones for the defendant.
For the plaintiffs in error it was contended, that the pleadings on the part of the United States properly set forth the bond and the indorsement upon it, the indorsement being a part of the bond. 1 Wash. Rep. 14. Upon the declaration it appears that Deblois was appointed a purser in the United States; and as such received large sums of money, for which he has failed to account.
As to the pleas to which demurrers were entered, it was argued that the third plea alleges the failure of Deblois to account arose from the gross and wilful negligence of the officers of the United States, under the control and direction of whom were placed the moneys and public property in the hands of Deblois.
To this it is answered, that negligence cannot be imputed to the United States; and if it were so imputable, it is not sufficiently pleaded. It is not shown in what manner, or how the negligence arose, or in what it consisted. The rule is, that what is alleged in pleading must be alleged with certainty. Cited 9 Wheat. 720; 10 Wheat. 184; Stephens on Pleading, 342.
If the fourth plea is intended to raise the question whether Lewis Deblois was legally an officer of the United States, as purser, after the 1st of May 1817, he not having given the new bond required by the act of March 1817; it is answered, that the act is director to the officers of the government, and their failure to comply with its requirements cannot release the ...