
    
      DICK vs. REYNOLD’S HEIRS & AL.
    
    Appeal from the court of the first district.
    On a suit marshal's bond for fees collected, it is no defence that the plaintiff's claim against the United -lates is unimpaired.
   Martin, J.,

delivered the opinion of the court. The plaintiff charges that the deceased being marshal of the United States for the. Louisiana district, received from the treasury of the U. S. and sundry persons, several sums of money for the salary and fees oi the plaintiff, attorney of the United States for the same district, which he never accounted for. The suit is instituted on the deceased’s official bond.

The court of the first district nonsuited the

plaintiff, being of opinion that the action could not lie. because the obligation of disbursing the public money was contracted with the United States, and they alone can avail themselves of any breach of the condition of the marshal’s bond, in relation to such disbursements. The plaintiff appealed.

It is clear that if the deceased, as marshal, received the salary of the plaintiff from the treasury of the United States, and the fees clue him from the clerk of the court of the United States, the defendants did him an injury by retaining the money, and this injury was a breach of the condition of his bond.

As to the deceased this obligation, thought enforced by the bond, arises independently from it, from the very circumstance of his receiving the plaintiff's money, which created art obligation to pay it, and on this the law raises a promise.

As to the safeties, their obligation is said to ari-e from a written engagement to which the plaintiff is not a party, and that the parties alone undergo the obligations, and acquire the rights resulting from a contract. But this court have recognised in the case of the Mayor & al. vs. Bailey, 5 Martin, 321, that one may have a direct action, on a stipulation in his favor, on a deed to which he is not a party, and that the congress of the United States has given the right of suing on the !■ nd to any person injured by a breach of its condition. Ingersoll 117.

ft is vain to contend that the deceased has' not impaired the plaintiff’s right to demand tus,salary from the United States. This is c .'¡.airily true; but one has often several r< medies at once existing on the same right, he may exercise either.

They further urge, that at the time the origin ii law was passed, which requires the mar-si d to find bond, it was not that officer’s duly to receive and pay the salaries of the. il'orney; but the fact is, that the latter law making that his duty, was passed before the bond sued on was given. It, therefore, was given as a surety for the faithful payment of such monies thereafter received, and the nonpayment of them was a breach of its condition.

Smith for the plaintiff, Grymes, and Conrad, for the defendants.

it is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed; the non-suit set aside, and the case remanded for further proceedings, the defendant and ap-pellees paying costs in this court.  