happening of either of these contingencies, the sureties agreed to pay to the United States such damages as they might sustain within the penalty of the bond.

The United States had appointed Mr. Bourne Purser in the Navy; and they were to place in his hands money, and other property, to enable him to discharge the duties of his appointment. There is nothing in this contract which requires that the United States should give notice to the sureties that their principal had committed a breach of the bond. That is the very thing they have agreed that he would not do. The laws and regulations referred to, were enacted and adopted the more effectually to protect the Treasury and sureties: but they contain no provisions, that, if the naval or accounting officers do not perform their duties, that sureties shall be absolved from their agreements. The Supreme Court of the United States say, in the case of the United States vs. Kirkpatrick, 9th Wheat. 735, "the Government can transact its business only through its agents, and its fiscal operatione are so various, and its agencies so numerous and scattered, that the utmost vigilance. would not save the "public from the most serious losses, if the doctrine of laches can be applied to its transaction." In time of war, it would be impossible for disbursing officers regularly and uniformly to account as required by law, and, if it were otherwise, the accounting officers of the Treasury could not promptly take up and examine all the accounts and strike the balances.. It is as necessary for sureties, however, that this should be done in time of war as peace, and if they are absolved from their contracts in the latter, so they must be in the former instance. In the case referred to, the court say,' "it is admitted that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the Government?" As to the laws which require settlements to be made at short and stated periods, the court say, "but these provisions of the law are enacted by the Government for its own security and protection," and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the security. The general principle is, that laches is not imputable to the Government, and this maxim is founded not in the notion of extraordinary prerogatives, but upon a great public policy." It is as necessary that this policy should remain unchanged by the special legislation of Congress, as it is that it should not be disturbed by the courts. The court confirmed the doctrine laid down in the case of Kirkpatrick in that of Van Zandt, 11 Wheat. 184. 3. If laches are not imputable to the Government in not requiring the settlement of accounts, and giving notice of defalcations to sureties, they are not imputable in failing to bring suit, especially within a period so limited as that which exists in this case. If the petitioner shall discharge the judgment or make payment on it, he has his remedy against his co-sureties for contribution, and it may be enforced in England as well as here. There is another point in the case which the committee will notice, as it is adverted to by the petitioner; but whether the committee or Judge Story be correct, will not vary the result, as the bond does not cover the whole debt, exclusive of the defalcation under the first bond. Benjamin F. Bourne executed a bond to the United States, on the 14th of April, 1814, in the penal sum of $10,000, with Abet Jones and Stephen Price as his sureties, conditioned for the faithful performance of the duties of Purser. It is stated in the record of the case hereafter mentioned, that balance found due to

the United States, on the 30th of April, 1817, was $7,560 86. On the 30th of April, 1817, Bourne executed another bond, in the penal sum of $ 25,000, with Price, Dale, and Johnson, the petitioner, as his sureties, with the condition mentioned in the first bond. A further balance was found due, up to the 10th of November, 1823, of $31,556 88. The defalcation under both bonds amounts to $39,117 74. Abel Jones died, and a bill was brought by the United States, in the Circuit Court in Rhode Island, against the heir and administrator of Jones, to recover the defalcation under the first bond, praying for discovery and relic Various points were made in the case which were decided by the court, but the only one which it is the intention of the committee to notice, is, that the court assimilated the account to a running account between two individuals, and thereby exonerated the first sureties by satisfying the defalcation under the first bond, by the disbursements made out of money received under the second bond. The court pronounced the following judgment: "My judgment is, that, as the credits carried into the general account of Bourne, for disbursements, since the second bond was given, far exceeded the balance then due by him to the United States, the parties to the first bond are discharged from all responsibility thereon; the bill must, therefore, be dismissed." If this decision is correct, the consequence follows, that sureties are to be made responsible beyond the condition of their bonds, if the obligees think proper to make them liable by the manner of keeping their accounts. The liability of the sureties arises from their contract, and, unless they agree to be holdén for former defalcations, the committee do not see how the bond is to have a retrospective operation; nor how it is possible for the obligee to enlarge or vary the condition of the bond, by the manner of keeping his accounts. The committee do not perceive the similarity between cases, when the rights of different sureties are involved, and instances of running accounts between the same individuals. They consider that the disbursing officers do not, in the ordinary acceptation of the term, become the debtors of the Government at the time of receiving their money. They are the agents or trustees of the Government, and money is put into their hands for a particular purpose, and to be paid out in a manner and for objects defined by law. Bonds are given, conditioned that the trust shall be faithfully discharged; and when the bond is put in suit, the first question is, has there been a breach of it? If the money has been lost or destroyed, without the fault or neglect of the trustee, or, if it has been paid as the law required it to be disbursed, the condition of the bond is not broken. In the case of Pursers, there is no necessity of mingling the liabilities of sureties to different bonds. Take the present case: Mr. Bourne was Purser of the Peacock; he had received a sum of money to pay the crew, and to purchase the usual supplies for that vessel; his vouchers shew how his disbursements were made. In closing this account he was found to be in arrear, and a balance was struck against him. He then gave new bonds, and another advance of money was made to him as Purser of the Constellation; his vouchers shew how he disbursed this money, and each set of sureties may be made liable for the defalcation that arises under their respective bonds, and for none other. The interests of the United States can only be protected by making each set of sureties liable for the defalcations that exist under their respective bonds. In this case, if the sureties of the first bond had been held liable to pay the first balance that was struck, that amount would have been saved to the Government, but which is now lost, as the second

bond does not cover the amount of both defalcations. Entertaining the opinion that the decision of the court in the suit against the first sureties is incorrect, the committee would have felt themselves bound to have applied the amount transferred by the court, to discharge the first defalcation towards the judgment on the second bond, if that bond, with such defalcation, had more than covered the second defalcation. The committee has given to this case all the attention its importance seemed to demand, and they would have been pleased to have concurred with the Senate, if they could have arrived at this result without infringing the settled policy of the Government; but, entertaining as they do, the opinion that the precedent would be mischievous in its consequences, and that the petitioner does not present a case which entitles him to relief, on legal or equitable principles, the committee submit to the consideration of the House, the following reso lution:

Resolved, That the bill from the Senate for the relief of George Johnson be rejected.

IN SENATE OF THE UNITED STATES,

JANUARY 25, 1830.

Mr. ROWAN made the following

REPORT:

The Committee on the Judiciary, to which was referred the petition of George Johnson, surety of Benjamin F. Bourne, late a purser in the Navy, report:

That the petitioner states, that the said Benjamin F. Bourne was appointted a purser in the Navy in March, 1814, and, in conformity with law, gave bond in the penal sum of $10,000; and Abel Jones, of Rhode Island, and Stephen Price, of New York, as sureties.

That, on settlement of the accounts of said Bourne at the Treasury De partment, up to May 30, 1816, he was found to be indebted to the United States in the sum of $8,667.

That, in the year 1816, Bourne applied for employment, but was refused on the ground of his being a defaulter.

That, in pursuance of the act of Congress of March, 1817, requiring pursers to give new bonds in the penalty of $25,000, a new bond was given on the 30th April, 1817, by the said Bourne, on which the said petitioner, Stephen Price, and Charles Augustus Dale, (then both of New York, but now of England,) became securities.

That this bond was taken by the District Attorney of the United States in New York, but that the fact of Bourne's being then a defaulter to the United States was not made known to the said last mentioned securities.

That, on November 15, 1817, purser Bourne was ordered to the Mediterranean, from which he returned, under arrest, in 1820, was afterwards released from arrest, and in July, 1820, ordered to the frigate Constellation.

That at this time, he was indebted to the United States in the sum of $24,639, was permitted to sail in said vessel to the Pacific Ocean, and did not return to the United States until the last of July, 1822; after which time, he remained partly at the seat of Government, and partly in New York, for more than fifteen months, during all which time he was never required to settle his account. Nor had he been so required to account for the moneys placed in his hands from the 30th of May, 1816, although the act of Congress of 3d of March, 1817, made it the duty of the Secretary of the Treasury to cause all accounts of the expenditure of public money to be settled within the year; and, by the same act, it is made the duty of the First Comptroller to lay before Congress, annually, a list of such officers as shall have failed in that year to make the settlement required by law.

That purser Bourne died at New York on the 10th of November, 1823; and that, in March, 1824, an account was stated in the Fourth Auditor's office, from which it appeared that a balance of $ 40,257 was due to the United States, which balance was finally reduced to $ 34,149.

That, some time in the year, a suit was brought in the Circut Court of the United States for the first district, against the sureties in the first bond; and the Court held, that, as the credits, carried into the general account of Bourne for disbursements since the second bond was given, far exceeded the balance then due by him to the United States, the parties to the first bond were discharged from any responsibility thereon.

That, about three years after the death of purser Bourne, (the co securities of the petitioner, to wit, Stephen Price and Charles Augustus Dale, having been permitted to depart from this country for England, where they now reside,) suit was instituted against him, the petitioner, founded on the second bond, and judgment rendered against him, in favor of the United States, for $25,000, the amount of penalty in the bond.

That, upon trial of the cause, the Judge refused to admit evidence of the fact that Bourne was indebted to the Government at the time of the execution of the second bond, and charged the jury, that the neglect of the officers of Government to notify the sureties of the second bond, or to call for the settlement of the accounts of the principal, although expressly required by law so to do, afforded no defence for the surety.

That it was the opinion of the jury empanneled on the suit, that the loss was imputable to great neglect of duty on the part of the officers of Government, in not requiring from Mr. Bourne a settlement of his accounts; that the said jury felt themselves constrained to find a verdict for the United States, as would appear from their certificate, voluntarily given, and accompanying his papers.

That the petitioner adduces various other arguments, showing the peculiar hardships of his case, which the committee have deemed it unnecessary here to recapitulate; and that he concludes with the prayer "for such relief in his particular case, from the penalty of the above mentioned bond and the judgment recovered thereon, as may be agreeable to equity and justice."

After an attentive consideration of the facts connected with this case, and the circumstances that so strongly press the propriety of a favorable decision, the committee are ofopinion that the prayer of the petitioner should be granted, and, accordingly, report a bill for his relief.

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