UNITED STATES v. ABEEL et al., 174 F. 12

SHELBY, Circuit Judge (after stating the facts as above). This case was decided against the plaintiff on a general exception to the petition. The court below, therefore, • held that, admitting all the averments of the petition to be true, it showed no right of action in the plaintiff. The action is by the payee, the United States of America, against the makers of the bond sued on. To show fully the case presented by the petition, we have set it out in full in the statement of the case, omitting only the exhibits, which may be understood from the averments of the petition.

When Finks was appointed clerk of the Circuit Court of the United States for the Northern District of Texas, he was required to give bond in a sum to be fixed, and with sureties to be approved, by the court which appointed him, “faithfully to discharge the duties of his office.” Rev. St. U. S. § 795 (U. S. Comp. St. 1901, p. 619).

The bond conforms to the statute, and contains the condition that he, “by himself and by his deputies, shall faithfully discharge the duties of his office * * * and properly account for all moneys coming into his hands, as required by law.” The petition shows very clearly and elaborately that he failed to comply with the condition of his bond. He received, under rules of the court of which he was clerk, $26,675.01, and has not properly disbursed or accounted for the same, but, on the contrary, has misappropriated and converted the money to his own use.

The money having been received by Finks as clerk under rules of the court, it is clearly money held by him officially, and it is a breach of his bond to convert it to his own use. Smith v. United States, 170 U. S. 372, 379, 18 Sup. Ct. 626, 42 L. Ed. 1074; Howard v. United States, 184 U. S. 676, 22 Sup. Ct. 543, 46 L. Ed. 754. It does not seem to be denied that the conversion of the money was a plain violation of duty and a breach of the condition of the bond for which the makers are liable in a proper action.

The defense, as we understand it, is that the suit cannot be maintained by the United States, the payee named in the bond. The money, it appears, was received by the clerk as deposits to secure costs. The several sums making the aggregate, after deducting his own costs, should have been paid by the clerk to witnesses, attorneys, notaries, marshals, and others who earned and were entitled to fees out of the funds so deposited. lie failed and neglected to pay out the fund as he should have done, but converted it to his own use, and failed to turn it over to his successor in office or to otherwise account for it.

It is not denied that if the fund so received had been the property of the United States, due to the government primarily and not to others, this action could be maintained; nor is it denied that any one of the officers or witnesses who earned and to whom was due a part of such sum could maintain an action on the bond in the name of the United States for hi's use for the sum so due him.

The action here is not by the United States as nominal plaintiff for the use of some named witness or officer, but it is a suit seeking to recover the entire amount converted by the clerk, stating the facts and showing that the sums making up the aggregate sued for were really earned by and are due to the officers and witnesses to secure whom the deposits were made. The defense sustained by the court below is based on the proposition that the United States has no such interest in the fund as will sustain the suit. These sums were paid to Rinks, not as an individual, but as clerk of the court.

The parties who made the deposits were required to do so b)' rules of the court. Except as to the part of the sums necessary to pay his own costs, the clerk held the money officially, to be paid out to those entitled to it. His possession of it never gave him any personal right to it, and he violated his official duty when he converted it to his own use. Holding the money as clerk, he held it subject to the orders of the court, and any witness or officer entitled to part of it, on motion and on proving the facts, could have obtained an order on the clerk to pay him the amount due him.

If, when he ceased to be clerk, the deposits were in his custody, he had no right to longer hold them. If he could not immediately disburse the money to those entitled to it, he should have left it on deposit, subject to the order of the court, or turned it over to his successor in office. If it had been shown to the court that a retiring clerk had funds in his hands held by him officially, an order would have been made, if necessary, directing the fund to be turned over to his successor, or otherwise placed under the control of the court.

The clerk necessarily receives under the rules of court a great many small sums as security and indemnity for costs. These sums in the aggregate in a few years may amount to many thousand dollars. It would be unfortunate if there was no other wa)*- to make him account for the fund except by suit in the name of the United States by each witness or officer to whom a few dollars were due. It is not denied, as we have said, that this suit could be maintained by one of the witnesses or officers who sued in the name of the United States for the small' part of the sum involved that had been earned by him.

This petition alleges the failure of the clerk to pay over the moneys sued for to those who earned it or to his successor. If necessary to place it on that ground, why could not this suit be maintained as one for the use of those entitled to the fund, or for the use of the succeeding clerk? Clearly, if the money sued for is collected, the court could direct its disbursement by the clerk to any witness or officer who showed that he was entitled to fees out of it. The bond sued on is payable to the United States. The legal title, therefore, to whatever sum is due for a breach of the bond, is in the government.

Under the ancient common law, no action whatever could be maintained on the bond at law except by the payee named in the bond. As modified by statutes and decisions in most jurisdictions, others having equitable interests are permitted to assert them at law, but they are usually required to do so in the name of the payee. This is true even where the payee is entirely without pecuniary interest, and is the mere holder of the legal title.

Therefore, in the absence of a statute changing the rule, this action could only he brought in the name of the government, the payee in the bond, and the only question in this aspect of the case is whether or not it is a fatal defect to fail to name the person or persons entitled to the fund, and to aver that the suit is for his or their use. When we consider that the petition fully states the facts, and shows that it would be impracticable to name all who majf be entitled to some small portion of the fund, this objection seems technical and wanting in merit and. substance.

The main reasons for naming the usee is that he may be in court to receive what may be due him, or to have his rights protected, and that he may be bound by the result. Tf recovery is had in this action, the amount collected would be brought into court by the suit, and would be subject to the orders of the court. XTor would there be any danger that the defendants would be subject to a second suit by the usees for the same or a part of the same demand.

The clerk or liis representative or the sureties on his bond, under an order of the court, could at any time deposit the fund with the present clerk of the court, and lie relieved of all further liability on account of such fund. If paid pursuant to a judgment of the court for breach of the bond, the effect would he the same. Proof of the fact of payment would bar any other action for the money. Unquestionably one entitled to a part of the fund in the hands of the clerk could sustain a suit on the clerk’s bond in the name of the United States. Howard v. United States, supra.

But it by no means follows that on the facts stated in the petition a suit for the breach cannot be maintained by the United States without a statement that the suit is for the use of some one named in the petition. In Boston & El. Ry. Co. v. Grace & Hyde Co. et al., 112 Fed. 279, 284, 50 C. C. A. 239, 244, the court, referring to the phrase in a declaration, “for the use and benefit” of another, said: “According to. respectable authority, the expression of a use may be disregarded as surplusage. Its purpose is to guard the interest of the usee against tlie adverse action of a nominal plaintiff.

It is held Unit such a phrase has no force to make an issue different from what it would have been if the phrase had been left out. Tt is held, also, that the declaration of use is no part of the pleading. Bentley v. Insurance Co., 40 W. Va. 729, 739. 23 S. E. 584; Belton v. Gibbin, 12 N. J. Law, 77; State v. Johnson, 52 Ind. 197; Clay Fire & Marine Ins. Co. v. Huron Salt & Lumber Mfg. Co., 31 Mich. 346, 355: Northrop v. McGee, 20 Ill. App. 108; Tedrick v. Wells. 152 Ill. 214, 217. 38 N. E. 625: Hobson v. McCambridge, 130 Ill. 367, 375, 22 N. E. 823; 15 Enc.

Pl. & Prac. 484. 498.” See, also, 31 Cyc. 100, and cases there cited, and United States v. Griswold, 8 Ariz. 453, 76 Pac. 596; Id., 9 Ariz. 304, 80 Pac. 317. We are of opinion, that the facts stated in the petition show a cause of action in the plaintiff. The conclusion, we think, is sustained by the principles of pleading at common law. “So far as plaintiffs are concerned, the rules of common law are modified very little, if at all, in the Texas practice.” Townes on Texas Pleading, 199.

It may not be amiss to note the fact that, if this were a suit on a Texas official bond, “made payable to the state of Texas, or any officer thereof.” a suit could be maintained on it in the name of the state alone when the recovery would inure to parties other than the state; such suit being brought “for the benefit of all parties entitled to recover thereon.” Id. 202; Rev. St. Tex. 1895, art. 1207. This action is, in effect, for the benefit of all parties entitled to the fund sued for; for, if it is recovered, it will be brought into court to be disposed of according to law.

It is true that no effort is made .to name the many persons who may be entitled to parts of the fund. It appears to be impracticable to do so. To hold that the suit cannot proceed without naming them would be equivalent to saying that the clerk could appropriate the fund- and hold it because of the fact that it is not possible, under the circumstances, to name them all. We would not willingly reach a conclusion leading to results so injurious to the public interests.

But if, as between the clerk who has wrongfully converted the fund and the United States, the latter has the better right, it is probably not necessary to consider the question as to whether this action can be construed to be and sustained as one for the use of the clerk’s successor, or the witnesses and officers who earned the fees.

Except as to fees and commissions plainly allowed by law, it is not intended that the clerk should become the owner of any money received by him officially.- No matter how long it may remain in his hands, no matter how negligent .of asserting claim to it the true owner may be, it is not to become the property of the clerk, and he has no right to use it as his own.

It would be against public policy, and likely to lead to scandalous results, if sums which litigants are required to deposit with the clerk to secure costs or otherwise could be considered a personal gain or perquisite of the clerk if not claimed by those entitled to it. Such a doctrine would make it to the pecuniary interest of the clerk to suppress the facts relating to the deposit of money and the disposition of cases which called for its distribution.

If there were no statutes on the subject, it would still be within the power of the court, its attention being called to the matter, to prevent such a course of conduct on the part of the clerk.

If a. sum received by the clerk to be distributed as costs and fees could not be paid out by order or direction of the court or pursuant to the usual practice, the clerk should make a deposit of it as required by statute: “All moneys paid into any court of the United States-, or received by the officers thereof, in any cause pending or -adjudicated in such court, shall be forthwith deposited with the treasurer, an assistant treasurer, or a designated depositary of the United States, in the name and to the credit of such court: Provided, that nothing herein shall be construed to prevent tiie delivery of any such money upon security, according to agreement of parties, under the direction of the court.” Rev.

St. U. S. § 995; Act March 24, 1871, c. 2, § 1, 17 Stat. 1 (U. S. Comp. St. 1901, p. 711). When the money was so deposited, there would be a public record of the fact tending to protect parties in interest, and the accumulation of these sums in the hands of the clerk would no longer lead him into temptation. These sums, we repeat, could never become the property of the clerk, but they may, if unclaimed, and if it become impossible to pay them to those entitled to them, become the property of the United States, “if they have remained in the custody of the court unclaimed for ten years or longer.” Rev. St. U.

S. § 996, as amended by Act Feb. 19, 1897, c. 265, § 3, 29 Stat. 578 (U. S. Comp. St. 1901, p. 711). If it be true, as alleged, that the clerk converted funds held by him officially to his own use, this was a breach of the bond he gave to the United States, and it was the duty of the United States Attorney to bring a suit on the bond.

Judge Boyd, speaking for the Circuit Court of Appeals for the Fourth Circuit, suggested as the proper practice: “When such state of facts was shown to exist, we think the law dearly contemplates that a breach shall be declared which would entitle the United States to recover the amount of the bond, to be discharged, however, upon the payment of such special damages as may have been proved to exist.” United States v. American Surety Company, 163 Fed. 228, 89 C. C. A. 658. Upon proof of a breach of the bond, in the aspect of the case most unfavorable to the plaintiff, a recovery of nominal damages would follow.

If, however, the evidence is such as to show the amount of damages arising from the breach of the bond, instead of entering judgment for the entire penalty, to be subsequently satisfied, as suggested in the case last cited — there being no proof of special damage in that case-— the judgment should be entered for the amount shown to be due “according to equity.” The following is the statute which controls the procedure in such cases : “In alt suits brought to recover the forfeiture annexed io any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or nonperformance appears by the default or confession of the defendant, or upon demurrer, the court shall render Judgment 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, it shall, if either of the parties request it, be assessed by a jury.” Rev. St. U. S. § 961; Act Sept. 24, 1789, c. 20, § 26, 1 Stat. 87 (U. S. Comp. St. 1901, p. 699). In S. Oteri, 67 Fed. 149, 151, 14 C. C. A. 344, 346, Judge Pardee said that “the rule declared by this statute is to be generally applied in proper cases in courts of the United Slates.” See, also, Gurney v. Hoge, 6 Blatchf. 499, Fed. Cas. No. 5,875; United States v. White, 4 Wash. C. C. 414, Fed. Cas. No. 16, 686.

This case has been brought to this court to review a judgment rendered sustaining an exception to the petition. For purposes of our decision, therefore, we are required to assume the allegations of the petition to be true. Nothing said here, however, should reflect on the character of the deceased clerk, whose representatives will have the right on the next trial to require proof of, and to disprove, the charges made in the petition. The judgment is reversed, and the cause remanded, with instructions to overrule the exception to 1he petition, and thereafter proceed according to law and the views herein expressed.