M'Gill, and Others, Plaintiffs in Error, against The President, Directors & Company of the Bank of the United States, Defendants in Error, 12 Wheat. 511

Mr. Justice Johnson delivered the opinion of the Court. This cause ■ comes up by writ of error from the Circuit Court of the United States, held for the District of Connecticut, ip which the defendants here obtained a judgment against the plaintiffs upon a penal bond, in which M‘Gill was principal, the other defendants sureties. . M'-Gill was cashier of one of the branches of the Bank of the UnitedoStates, and this bónd was given in the penal sum of 50,000 dollars, conditioned for the due performance of that office.

The replication sets out a great variety of breaches, and the cause was decided below upon a special verdict, by which was found for the plaintiffs the sum of 66,548 dollars, consisting of a variety of items upon which interest is charged severally, from the date of the embezzlement or other breach, to the time of°finding the verdict.

The verdict then finds two payments, one of 20,000 dollars, made by one of the sureties on the 16th of December, 2 820; the . other of 500 dollars, made by another, of the sureties on the 22d of December, 1820, on which- they, also calculate interest to the date of the verdict, and deducting the amount of principal and interest, strike a balance of 43,182 dollars 50 cents.

It also finds the following facts: “ That the President and Directors of the Bank of the United States, on the 27th of October, 1820, at Philadelphia, passed the following resolution, to wit: “ Whereas it appears, by the report of á committee of the office of discount and deposit at Middletown, that Arthur W. M‘Gill, cashier of that office, has been guilty of a gross breach of trust, in knowingly suffering over drafts to be made by individuals; also by making overdrafts himself; therefore, resolved, that A. W.

M‘Gill, cashier of the office at Middletown, be, and he is hereby, suspended from office till the further pleasure of the board be known. On motion, resolved, that the president of the office at Middletown, be authorized and requested to receive into his cafe, from A. W.

M‘Gill, the cashier, the cash, bills discounted, books, papers, and other property in said office, and to take such measures for having the duties of cashier ■ discharged, as he may deem expedient.” Which resolutions were immediately transmitted by mail to the president of the Middletown office, who received them on the morning of Sunday, the 29th of the month, but did not communicate them to M‘Gill until the afternoon of the 30th, between the hours of four and five in the afternoon.

It then finds, that all the breaches were incurred before the 30th, and goes on to find alternatively, so as to enable the Court to give judgment, according to its views of the law, as.between the .parties. There appear to have been various.questions argued in the Court below, some of which were decided for the plaintiff, some for the defendant; but ' as the plaintiff below seeks an affirmance of the judgment, and has not sued out a writ of error, it follows, that we confine ourselves to those points only which were decided against the plaintiff here.

These were two, one of them. going to the whole right to recover, the offer to the application of the payments towards the discharge of the sum to be recovered. Liability of tilo sureties. Application of the payments, The first of these was, whether the sureties were not discjjarge(j ipS0 jact0 fr0m further liability, by the resolution of the parent bank on the 2< th; or if not on that day, then on the 29th, the day on which it was received at Middle •' town by mail.

If discharged on either of those days, it would follow, that the plaintiffs below could not have judgment, since the finding was up to the day following. We are unanimously and decidedly of opinion, that the ground ássumed by the defendants below canfiot be maintained. What was there in the resolutions of the parent hank to discharge the obligors at all from their liability ? The resolution was only to suspend, and this implies the right to restore.

The cashier’s salary went on, and had the board rescinded their resolution, what necessity would there Lave existed for a redelivery of his bond V But there is no necessity for placing the decision on this ground, since, notwithstanding the resolution of the board is expressed in the present tense, a future operation must necessarily be given it, from a cause that could not be overcome, the distance of the parties from each other. Time became indispensable to giving notice, and the day on which the communication reached the president of the Middletown bank, was a day not to be profaned by the business of a bank.

There was, then, no obligation to deli ver the notice, and dispossess the cashier, until the 30th, and the law makes no fractions of a day The Court below, in applying the payments, directed them to be deducted from the penalty of the bond, and then gave interest upon the balance thus resulting. This, with the exception of the interest, was the most favourable application possible for the defendants below; and the interest on the balance having been only allowed from the date of the suit, and ffiesum thus ascertainedfallingshortof the penalty ofthebohdwe think the defendant below has nothing to complain of.

It will'be discovered, by reference to da tes,.that the payments here made preceded the institution of the suit, and, although made by the sureties, they were made severally, for any thing that appears to the contrary from the verdict. Technically, then, the judgment to be entered would have been a judgment for the penalty of the bond, and, in applying the partial payment, the Court would have been governed by those principles which have been transferred in practice from the Courts of equity to the Courts of law, in deciding on what terms a party shall be released from the penalty of his bond.

These always are,; on payment of principal, interest, and costs. And it can constitute no objection to the application of this principle to the case of these obligors, that no interest was allowed them during the short interval between the payment and the suing out of .the writ, since the breaches were incurred long before, and interest for the same period is refused to the bank. Judgment affirmed, with six per cent, interest.