The United States, plaintiffs in error v. Phineas Bradley, surviving administrator of David Ott deceased, 10 Pet. 343

Mr Justice Story delivered the opinion of the Court. This is a writ of error to the circuit court of the District of Columbia, for the county of Washington. The original suit was debt, on a bond given to the United States by John Hall, Daniel Ott and Nicholas B.

Vanzant on the 26th? of May 1818, the condition of which, after .reciting that Hall was appointed paymaster of the rifle regiment in the army of the United States, was as follows : “now, if the said John Hall shall well and truly execute, and faithfully discharge according to law, and to instructions received by him from proper authority, his duties as paymaster aforesaid ; and he, his heirs, executors or administrators shall regularly account, when thereto required, for all moneys received by him from time to time as paymaster aforesaid, with such person or persons as shall be duly authorized and qualified on the part of the United States for that purpose, and moreover pay ino their treasury such balance as on a final settlement of the said John Hall’s accounts shall be found justly due from him to the said United States ; then this obligation shall be null and void, and of no effect, otherwise to be and remain in full force and virtue.” In the court below, the defendant pleaded six several pleas, and issues were joined on' the first, second, fourth and six pleas.

To the third and fifth pleas the United States replied. The defendant demurred to the replication to the third plea, and rejoined to the replication to the fifth plea ; to which the United States demurred. Upon these demurrers the' court below gave judgment in favour of the defendant. Upon these pleadings two questions have been made and argued at the bar. 1st. Whether the. bond is in conformity to the requirements of the act of the 24th of April 1816, ch. 69, for organizing the general staff, and making further provision for the army of the United States. 2d.

If not, whether the bond is wholly void; or void only so far as it is not in conformity to that act. The act (section 6) provides “ that all officers of the pay, commissary and quarter-master’s department, shall, previous to entering on the duties of their respective offices, give good and sufficient bonds to the United States-fully to account for all moneys and public property which they may receive, in such sums as the secretary of war shall direct.” It is plain that the condition of the bond is not, in .its very terms, in conformity with this provision.

But the argument on the part of the United States is, that though in terms it varies from the act; yet, inasmuch as all the duties, required of the paymaster by law begin and terminate in matters of account; that in substance the condition includes no more than what the prescribed terms of the act contemplate. In our view of the case it is wholly unnecessary to decide this question ; because the only breach alleged is the non-accounting for, and non-payment of moneys due to the United States by Hall; upon a final settlement of his accounts.

So far as the condition of the bond requires Hall to account for moneys received by him, it substantially follows the provisions of the act of 1S16 : and if the bohd be riot wholly void, it -is clear that the-United States are entitled to recover upon the present pleadings in whatever way the first question may be decided. The second question, therefore, is that to which the. attention of the court will be addressed. " Upon the face óf the pleadings-this .must be taken to be a bond voluntarily given by Hall,- and his sureties.

There is no averment that it was obtained from them by extortion or oppression under colour of office, as there was in the United States v. Tingey, 5 Peters 115, On the contrary, both the third and fifth pleas are wholly barren of any averments on the subject of the giving of the present bond. All they assert in substance is, that Hall never gave any such bond as .is required by the act of 1816; and that the act of 1816 was the only law regulating the bonds of paymasters; with some collateral averments not material to be here mentioned.

Now no rule of pleadings is better settled, or upon sounder principles, than that every plea in discharge or avoidance of a bond,.should state positively and in direct terms the-matters of discharge or avoidance. It is not to be inferred, arguendo; or upon conjectures. Indeed, both these pleas are open to the objection of being merely argumentative; and are wholly destitute in the technical precision necessary for pleas in avoidance or discharge.

The replication of the United States to the third plea does, however, exclude, so far as that plea is concerned, any inference of extortion or oppression, colore officii; for it avers that the bond was given with the intent of complying with the act of congress, and by the direction of the secretary of war. It may be added, that the bond is not only voluntary, but for a lawful purpose; viz. to insure a due and faithful performance of the duties of paymaster, a circumstance which must repel any supposiof an oppressive or unjust design.

But passing from these considerations, the question which first arises is, whether a voluntary bond taken by the United States, for á lawful purpose, but not prescribed by any law, is utterly void. This question was elaborately argued in the case of the United., States v..

Tingey, 5 Peters’s Rep. 115; and upon full consideration; it was there held by this court, that the United States being a body politic, as an incident to their general right of sovereignty, have a capacity to enter into contracts, and take bonds in cases within the sphere of their constitutional powers, and appropriate to the just exercise of those powers; through the instrumentality of the proper department to which those powers are confined; whenever such contracts or bonds are not prohibited by law; although the making of such contracts, or taking such bonds, may not have been prescribed by any pre-existing legislative act.

The court laid down this as a general principle only, without (as was then said) attempting to enumerate the limitations and exceptions, which may arise from the distribution of powers in our government; and from the operation of other provisions in our constitution "and laws.

But the court, in applyihg the principle to the case then before them, further added, “ 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 inofficial duties of a receiver, or an agent for the disbursement, of public moneys, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or requited 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 a legal view.” From the doctrine here stated, we have-not the slightest .inclination to depart: on the contrary, from further reflection, we are satisfied that it is founded upon the soundest principles of law, and the just

interpretation of the constitution. Upon any other doctrine, it would be incompetent for the government, in many cases, to take 'any bond or security for debts due to if, or for deposits made of the public money ; or even to enter into contracts for the transfer of its funds from one place to another, for the exigences of the public service, by negotiable paper or otherwise ; since s'uc.h an authority is not expressly given bylaw in a vast variety-of cases. Yet, in Dugan v. The United States, 3 Wheat. 172, 4 Cond. Rep. 223, and in the Postmaster-General v. Early, 12 Wheat. 136, 6 Cond.

Rep. 480, this right of the government was treated as unquestionable, and belonging to its general functions, as an appropriate incident.

The United States, then, having, in our opinion, a capacity to take a voluntary bond in cases within the scope of the powers delegated to the general government, by the constitution, through the instrumentality'of the proper functionaries to whom these powers are confided ; this consideration disposes of the whole of that part of the argument, and the cases-cited in support of it, which are founded upon the distinction between bonds which are given to parties having a capacity to take ; and bonds, which are given to-parties, who have no such capacity : the former may be- good in part; the latter are wh'plly void.

That bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not-malum in se; is a doctrine well founded in the-common law, and has been recognized from a very early period. Thus, in Pigot’s case, 11 Co. Lit. 27 b., it was said, that it was unanimously agreed in 14 Hen. S, 25, 26, that if some of the covenants of an indenture, or of the conditions indorsed upoii a bond aré against law, and some, are good and lawful, that in this case the covenants or conditions which are against law, are void ab initio; and the others stand good.

And, notwithstanding the decision in Lee v Coleshill, Cro. Eliz. 529 ; which, however, is distinguishable, being founded on a statute; the doctrine has been maintained, and is settled law at the present day in all cases where the different covenants or conditions are severable, and independent of each other, and do not import malum in se; as will abundantly appear from the case of Newman v. Newman, 4 M. & Selw. 66, and the other cases hereafter stated ; and many more might be added.

But it has been urged, at the bar, that' this doctrine is applicable only to cases where the case stands wholly at the common law, and not where the illegality arises under a statute ; and this distinction derives .countenance from what was said in Norton v. Simmes, Hob. Rep. where the distinction was taken between a bond made void' by statute, and by common law ; for (it was there said) upon the statute of 23 Hen. 6, ch. 9, “ if a sheriff will take a bond for a point against that law, and also for a debt due, the whole bond is void; for the letter of the statute is so.

For a statute is strict law; but the common law doth decide according to common reason: and having made that void, which is against law, lets the rest stand, as in 14 Hen. 8, 15.” In the case of Maleverer v. Redshaw, 1 Mod. Rep. 35, which was debt, upon a bail bond, Mr Justice Tvvisden said, he had heard lord Hobart say, “ that the statute, i. e. 23 Hen. 6, ch. 9, is like a tyrant; when he comes, he makes all void.

But the common law is like a nursing father, makes void only that part where' the fault is, and preserves the rest.” But Mr Justice Twisden added, that lord Hobart put this doctrine upon the ground -that the statute of 23 Hen. 6, ch. 9, had expressly declared that if any of the sheriffs, &c., should take any obligation in any other form, by colour of their office, that then it should.be void. The case in Hobart’s Reports, was put by the court expressly upon this distinction. And it was well remarked by Mr Justice Lawrence, in Kerrison v.

Cole, 8 East’s Rep. 236, that this case is easily reconcilable with the general principle : for sheriff’s bonds are only authorized to be taken with a certain condition : and, therefore, if they are taken with any other condition, they are void in tolo, and cannot stand good in part only.

But that does not apply to different and independent covenants and conditions, in the same instrument; which may be good in part, and bad in part: and so it was held by the whole court in that case ; and notwithstanding the instrument, (a bill of sale and mortgage of á ship), was, by statute, declared to be utterly null and void, to all intents and purposes yet it was held', that a covenant in the same instrument, to repay the money lent, was good as a personal covenant. The same doctrine was held in Wigg v. Shuttleworth, 13 East’s Rep. 87; How v. Synge, 15 East’s Rep. 440; Mouse v.

Leake, 8 Term Rep. 411; Greenwood v. The Bishop of London, 5 Taunt. Rep. 727, S. C. 1 Marsh. Rep. 292. In this last case, the court took notice of the true line of distinction between the cases, viz. between those cases, where the statute had declared the instrument taken in any other form, than that prescribed by the statute, to be. utterly void ; and those cases, where it had- declared the instrument-void only as to the. illegal act, grant, or .conveyanee. It was the case of conveyance affected with simony, so far as the next presentation was concerned ; but conveying the advowson in fee.

On this occasion the court said, “ there can be no doubt, that the conveyance of an advowson in fee, which is of itself legal; if it be made for the purpose of carrying a simoniacal contract into execution, is void as to so much as goes to effect, that purpose ; and if the sound

part cannot be separated from the corrupt, it is altogether void. It is not, as in the case of usury, and some others, avoided by the positive and inflexible enactment of the statute; but left to the operation of the common law, which will reject the illegal part, and leave the rest untouched, if they can be fairly separated.” Here, the doctrine was applied directly to the very case of a statute prohibition. But the case of Doe dem. Thomson v. Pitcher (6 Taunt. R. 359; S. C. 2 Marsh R. 61) contains a still more full and exact statement of the doctrine.

It was a case supposed to be affected by the prohibitions of the statute of charitable uses; 9 Geo. 2, ch. 36. Lord Chief Justice Gibbs, in delivering the opinion of the court, addressing himself to the argument, that if the deed was void as to part, it must be -void as to the whole; said: “ if the objection had been derived from the common law, it is admitted that would not be the consequence. But it is urged that the statute makes the whole deed void. As the counsel for the plaintiff puts it, there is no difference between a transaction void at common law, and void by statute. If

an act be prohibited, the construction to be put on a deed conveying praperty illegally is, that the clause which so conveys it is void equally, whether it be by statute or common law. But it may happen that the statute goes further, and says that the whole, deed shall be void' to all intents and purposes : and when that is so, the court must so pronounce, because the legislature has so enacted; And not because the transaction prohibited is illegal.

I cannot find in this act any words which make the entire deed void, &c.- I think this grant of that interest in land, which by the terms of the grant is to be applied to a charitable use, is void; and that the deed, so far as it passes other lands not to á charitable use, is good.” Such is. the clear résult of the English authorities. In this court) a similar doctrine Has been constantly maintained. It was acted upon in the case of The Postmaster-General v. Early (12 Wheaton’s Rep. 136). It was taken for granted in Smith v.

The United States (5 Peters’s Rep. 293); where the objéction, indeed, was not taken: but the bond was not in exact conformity to the statute (act of the 16th of March 1802, ch. 9, sect. 16), under which it was given by a paymaster. It was also directly before the court in Farrar and Brown v. The United States (5 Peters’s Rep. 373); where the bond, taken under the act of the 7th of May 1822, sect. 1, wholly omitted one of the clauses required by the statute to be inserted ,in the condition.

The court there entertained no doubt as to the validity of the bond, and only expressed a doubt whether a breach which was within the direct terms of the omitted clause; and yet which fell within the general words of the inserted clause, could be assigned as a good breach under the latter. But, if the bond, being a statute bond, was totally void, because the condition did not conform to.all the requirements of the act; it would have been wholly useless to have discussed the other questions arising in the cause.

Upon the whole, upon this point we are of opinion that there is no solid distinction in cases of this sort between bonds, and other deeds containing conditions, covenants or grants, not malum in se, but illegal at the common law; and those containing conditions, covenants or grants, illegal by- the express prohibitions of statutes. In each case the bonds or other deeds are void as to such conditions, covenants or grants, which are illegal; and are good as to all others which are legal and unexceptionable in their purport.

The only exception is, when the statute has not confined its prohibitions- to the illegal conditions, covenants or grants; but has expressly, or by necessary implication, avoided thé whole instrument to all intents and purposes. It has been urged, however, in the present case, that the act of 1816, ch. 69, does, by necessary implication, prohibit-the taking pf any bonds from paymasters other than those in the form prescribed by the-sixth

section of .the act; and therefore that bonds taken in any other- form are utterly void. We do not think so. The act merely prescribes the form and purport of the bond to be taken of paymasters by the war department. It is in this respect directory to that department; and doubtless it would be illegal for that department to insist upon a bond containing other provisions and conditions differing from those prescribed or required by law.

But the act has no where declared that all other bonds, not taken in the prescribed form, shall be utterly void : nor does such an implication arise from any of the terms contained in the act, or from any principles of public policy which it is designed to promote. A bond may, by mutual mistake or accident, and wholly without design, be taken in- a form not prescribed by the act. It would be a very mischievous

interpretation of the act to suppose, that under such circumstances it was the 'intendment of the act that the bond should be utterly void. Nothing, we think, bu t very strong and express language, should induce a court of justice to adopt such an

interpretation. Where the act speaks out, it would be our duty to follow it: where it is silent, it is a sufficient, compliance with the policy of the act, to declare the bond void, as to any conditions which are imposed upon a party beyond what the law requires. This is not only the dictate of the common law, but of common sense. We think, then, that the present bond, so far as it is in conformity to the act of 1816, ch. 69, is good ; and for any excess beyond that act, if there be any (on which we do not decide), it is void, pro tanto.

The breach assigned is clearly of á part of the condition (viz. to account for the public moneys), which is in conformity to the act; and therefore action is well maintainable therefor. The case of The Supervisors of Alleghany county v. Van Campen (3 Wend. Rep. 48), proceeded upon grounds of a similar nature. Before concluding this opinion, it may be proper to take notice of another objection raised by the third plea, and pressed at the argument.

It is that Hall was not entitled to act as paymaster until he he '/ given the bond required by the act of 1816, in the form therein prescribed ; and that not having given any such bond, he is not accountable as paymaster for any moneys -received by him from the government. We are of a different bpi rúo nr Hall’s appointment, jas paymaster, was complete when- his appointment was duly maílé' -by-the president, and confirmed by the senate. The giving of the bond was a mere ministerial act for the security of the-government; and not a. condition precedent to his authority to act as paymaster.

Having recei.ed the public moneys as paymaster, he must account for them as paymaster.

Indeed, the condition of the bond having recited that he was appointed paymaster of the rifle regiment, he and his relatives are estopped to deny the fact: and by the terms of their contract they undertake that “he shall regularly account, when thereto required, for all’moneys received by him as paymaster aforesaid.” The misdescription of the corporate or politic name of the plaintiffs in the bond, by calling them “The United States of JVorth America,” instead of America; is cured by the avermentof identity in the declaration : and, indeed, it has not been insisted on at the argument.

Upon the whole, we are of opinion that the third and fifth pleas, upon which the circuit court gave judgment in favour of the defendant are bad in law; and therefore the judgment ought to be reversed, and judgment thereon be entered in favour of the United States: and the cause remanded to the circuit court for further proceedings.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of the court that there is error in the judgment of the said circuit court in adjudging that the pleadings by the said defendants, in the same cause pleaded, and the matters and things there contained, are sufficient in law to bar the said United States from having and maintaining their action aforesaid.

And it is thereupon ordered, and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby reversed ; and this'court proceeding to render such judgment as the said circuit court should have rendered in the premises, it is further considered and adjudged by this court, that the third and fifth pleas, so as aforesaid pleaded by the said defendants, .are not sufficient in law to bar the said United States of their action aforesaid, against the said defendants ; wherefore the said United States ought, notwithstanding the pleas aforesaid, to recover their debt and damages on occasion of the premises.

And it is further ordered and adjudged by this court that the cause be remanded to the said circuit court for further proceed ingsjhereon, according to law. See 2 Saund. Rep. 55; Ib. 50, Williams’s note (3). Instead of these words in 2 Marshall’s Reports, p. 69, the words are, “ The truth is” there is no difference, &c.