
    THE UNITED STATES v. GILES and others.
    
      Msent....Toon, J.
    
    if a marshal dtatfeof Usotr. 
      re-Sec^tion^mo* ney «lueiothefrom the c°raPf^®rt)!® il’bankofthe U; states, wliicK su'r&V ties mhisoffiwards, are not “uhough the'' money remain ™&nás the exe* cutioti of the >
    
      THIS was'acase certified from the Circuit Court for the district of New York, in-which the opinions of the Judges of that Court were opposed' upon tea questions of law arising out of a special verdict.
    Whethei' the sure.lies in a mai-» shal’s hon'd for ecutioíofLT" duty, “during’ ] A continuance, “c^afeiiatSer. for moneyre-"' vai from office, an,ex?" remained rnh:« bamls fll,e removal!1*011
    Thecomptroito direct the <? páy moucyreeeived upon i-xecniion, and a payment ac’cordingfo suck directions is good, and it avail himself •trili 'withopt8 íiávin/submit¿editas a claim ;n¿hoRicer™uf the treasury. ahe u^Suitcs can; at the claim* for" a debt1 due to him by the u. SdT’c ™mSS shall Imve been. the'accoui tin oStcurs°of the treasury and, j!^eted,6except in the cases ^yUte^Liiue
    
      It was an action of debt brought by the United States against Giles, late marshal of the district of New and iiis sureties, upon his official bond, dated the 9th January, 1801, the condition of which was as follows: « Whereas the above bound Acjuiia Giles liath beeri appointed the marshal, in and for the New York district in pursuance of the'act, entitled “ an act to establish the judicial Courts of the United States,” Now, therefore, the condition <if the preceding obligation is such, that the said Aquiia Giles, shall, by himself and by his depúties, faithfully execute all lawful precepts directed to the marshal of the said district under the authority of the United States, and true returns make, and in all things well and tr- ly and without malice or partiality, perform the duties of the office of marshal, iii and for the said district of New Yoifk, during Iiis continuance in the said office, and take only bis lawful fees, then the preceding obligation .o be void, or else to remain in full force.and ' virtue.after
    The Defendants. pleaded performance. The replicaiion set forth six breaches .of the condition of the bond.
    1. That the United States having, in May, 1799, covered judgment in the district Court against one Jo hn Lamb for the sum of 127.952 dollars and 99 cents, debt, and 20 dollars damag s, a writ o.ffieri facias, was thereupon issued and delivered to the Defendant, Giles, then being marshal, upon which he returned in August, 1799, that he had taken goods and chatties to the value of SO dollars, which remained unsold for want of buyers/, whereupon a writ of venditioni exponas and fieri facias, was issued and delivered to th^saul D-tfendant, Giles, on the 9th of January, 1800, by virtue whereof he sold the said goods and chatties for 50 dollars, which sum lie reeeived ; and also, by virtue of the said writ, sold lands of Lamb to the amount óf 60.000 dollars, which sum he received and continued.to hold until the 1st of February, 1801, when he converted the same to his own use, frary to the tenor and effect of the condition of his said boild.
    
      2. That by virtue of the said writ, the Defendant, Giles, on the 17th of September, 1800, sold other lands of Lamb, for 60,000 dollars, which he received on the 20th day of January, 1801, and on that day converted the to his own use, contrary to the tenor and effect of the condition of the bond.
    3. That on the 17 th of December, 1800, the comptroljer xf the treasury of the United States directed the Defendant, Giles, to pay into the office ot discount and deP08^ °f the bank of the United,States, at New York, to the credit of the account of the. treasurer of the United States; all such sums of money as should be made from t!ie property of Lamb, by virtue of-the aforesaid writ, That the Defendant, Giles, afterwards, on the 23d of December, 1800, hy virtue of that writ, sold other lauds Uamb, to the amount of 60,000 dollars, which he rcfe,VCf^ 0,1 ^lc 1 °f January, 1801, but has not. paid the ¿ame, nor any part thereof, into the said office of discount and deposit in the manner directed, contrary to tenor and effect of the condition of his said bond.
    That on the lsf of February,. 1801, the Defendant, Giles, being marshal as' aforesaid, had in his bands as marshal, 14 bonds, the property of-the United States, (particularly described) and on that day converted the same, to his oWn use, contrary to the tenor and effect of ^ie condition of his bond aforesaid", ■
    5. That the Defendant, Giles, having, in September. 1800, made the sum of 309 dollars and 87 cents, by virtue of a fieri facias, in behalf of the. United States, "against one Richard' Capes, and having rcceiv d the same, converted it to his own use on the 1st. of February, 1801, contrary to the tenor and effect of the condition of his bond.
    6. That the. Defendant. Giles, having so received all the several sums of money before, mentioned, retained the same in his hands until the 27 th if March. 1801, when he'was duly removed and dismissed from his .office of marshal, and ceased to be- marshal of the New York district, and has retained the said several sums of money in his hands ever since. That on the 2d of June, 1804., he was duly notified according tó law, by the compíro] - ier of the treasury of the U nited States, to render to the. auditor of the treasury of the United States on or before the 10th of October, then next, all his accounts and vouchers for the expenditure of all monies received by him as marshal of the New York district, but he has rendered the same ; contrary to the tenor and effect of the condition of his bond aforesaid.
    The Defendants rejoined,
    1. To the first breach, that the Defendant, Giles, received the sum of 50 dollars, and sold the lands of Lamb for 30,000 dollars and no more. That by the orders of the com [droller of the treasury of the United -States, he received on the 10th of December, 1800,from the purchasers i 1,000 dollars, and no moré, in cash, in part of the Said sum of 30,000 dollars, and took from them, by the like orders of the said comptroller, their respective bonds and mortgages, 30 in number, for 19,000 dollars being the residue of the said sum of 30,000 dollars. That on .that day the-Uni ted States were .justly indebted to the said Giles, in the‘sum of 20,000 dollars, for money paid, by him at .their request for their use, and for fees justly due by them to him as marshal, and for services perform = ed by him for them at their request, when lie,retained in his hands the said sums of 50 dollars, and 11,000 do. lars, as it was lawful for him to do, in part payment and satisfaction of the, sum of 20.000 dollars so' due to him from the United States, and then and there delivered to the United States, the said several bonus apd mortgages in full payment and satisfaction of the said residue of the said sum.of 30,000 dollars. Without that, that-he converted to his own use the said suras of 50 dollará and Oí).000 dollars, in the replication, in assigning the first breach mentioned, or any part thereof in manner and form, &c. any otherwise than by retaining the -said sums of 50 dollars and 11,000 dollars as aforesaid.
    2. To the second breach, they say, that on the 17th of December, 1800, the Defendant, Giles, by virtue of the said writ, sqld other lands of the said ,Lamh f,>i* the sum of 29.383 dollars and 3.0 cents, and no more, and that by order of the comptroller he received from, the purchasers only the sum of 10,000 dollars, and took their bonds and mortgages, 30 in number, for the payinent of the.balance,. being 19,383 dollars and'30 cents. That the United States were on that day justly indebted to him in. the sum of 20,000'dollars for monies expended, Sec. and for fees, and services, Sec.- wherefore he i-etained in'his hands. 8,950 dollars, part.of the 10,000 dollars in part payment and satisfaction of the said sum of 20,000 dollars; and. paid to the United States the sum of 1,050 dollaf&'the'residue of the said sum of 10,000 dollars, and delivered to the. United States the áo bonds and mortgages aforesaid in full payment and satisfaction of the .aforesaid sum of 29,383 dollars and 30 cents; •'without that, that the said Giles converted to his own use, &c. otherwise than by retaining.the said sum of 8,950 dollars as,aforesaid, &c..
    - 3. To the third breach, they say, that the said Giles' did not receive 39,000 dolFars, parcel of the said 60.000 dollars, but that he received in all the sum of 21,000 dollars only from the buyers of the lands of the said John Lamb j and that the United States w-re on the said 15th of January,.".1801, justly indebted to the said Giles, in the sum of 22,000 dollars, wherefore he did not pay the said sum of 21,000 dollars or any part thereof into the office of discount and deposit of the bank of the United States, &c. but then and ¡there retained the same in his own hands, as it was lawful for him to do, &c.
    4. To the fourth breach, they say, that the said Giles, on the, 1st of February, 1801, delivered the said bonds to the attorney for the United States —¡without that, that he converted them to his own use, &c.
    5. To the fifth breach, they say, that on the 8th of January, 1801, the United States were .justly indebted to Giles, in. the sum of22,000 dollars, wherefore he retained 'the said sum of 309 dollars and ,$7 cents, in part payment and satisfaction of the said sum of 22,000 dollarswith-, out that, that he otherwise converted the same to his own use, &c.
    6. To the sixth breach, they aver, that Giles did render his accounts to the auditor on the 10th of October, 1804, as he was required to do.
    . To these rejoinders, there were general sur-rejoinders- and issues, except as to the rejoinder to the third breach ; upon which the Plaintiffá took issue as to 39*000 dollars, and demurred as to the retainer of the 21,000 dollars* upon which demurrer the Court gave'judgment for the United States.
    The jury found a special verdict which stated in substance, as follows
    
      i. Jls to the first breach, they find that the. Defendant, Giles, was authorized by the officers of the treasury depattment of the United States, in .executing the aforesaid writ of fieri facias to sell the lands of the said John Lamb, on the following terms, viz. one fourth of the purchase money to be paid- in casi!, one fourth with interest in 2 years, one fourth with interest in 3 j ears, hnd. the residue With interest in 4 years from toe day of sale, to be secured by bonds and mortgages j and was direct-, ed by the comptroller of the treasury, on the 17th óf December, 1800, to pay over alimonies lie might receive therefor into the 'office of discount and deposit of. the bank of the United States, in the city of New York, to the credit and account of the treasurer of the United States. That the sales were commenced on the 26th of November, and continued from time to time to the 23d. óf December, 1800. That Giles received from the purchasers before the 9th day of January,1801, (the dab-of the bond) .3,713 dollars and 98 cents," and jjo more, which sum, together with the sum of 50 dollars, which lie liad before received for the sales of the goods and chattels of the said John Lamb, In- never.had, nor any part thereof, before. the said district Court* to render to the United States, and never paid the same, nor any part thereof, into the said, office of discount and deposit, and that he has never been required by any rule or order of the said district Court to bring the said monies into the Court, nor to-pay them o'verIn any manner whatever!. That between August, 1800, and May, 1801, he arrested one Elias •Hicks by Virtue óf a writ of ca. s'a¡ in favour of the United States* for 80,0(50 dollars, and by án endorsement, thereon was directed to levy, by virtue thereof, 33,156 dollars and 38 cents* besides marshal’s fees' and poundage. That he kept the saidHicks in custody, in execution, until he was discharged by order of the secretary of the treasury of the United States, pursuant tó the act of congress, entitled “anací providing for the relief off. “ persons imprisoned for debts due to the United States.” That the poundage fees for the’service of that writ, if any such fees were due to the Defendant, Giles, thereon, not been paid to him, and that they amounted to the sum of 419 dollars and 57 cents.
    
    That the United States also became indebted to the Defendant, Giles, in the further sum of 8,133 dollars and 96 cents, for his own fees and services in taking the second census or enumeration of the inhabitants of the United States in the said district j and for 'monies paid by him as marshal as aforesaid tó his assistants in taking the said census, pursuant to the act of congress in such case provided, which several sums, so due from the United States to the said Giles, amount to the sum of 8,553 dollars and 53 cents, and that he has'retained the said suqus of 50.dollars and 3,713 dollars and 98 cents, from the times when they were received by him, and still retains them, claiming to hold and retain the same towards the payment arid satisfaction of an equal sum due to him from the United States as aforesaid. But whether upon the whole matter aforesaid, the said Giles did in law convert the said several sums of 50 dollars and 3,713 dollars and 98 cents to his own use, contrary to-the tenor and eff-ct of the condition of his said bond, the jurors aforesaid are ignorant, &c. ‘and if the said Giles did so convert, &c., they assess the damages at 3,7.63 dollars and 98 cents, and if, &c,
    2. Jls to the second breach, they find, that the said Giles, having received such instructions as aforesaid from the comptroller of the treasury, and having sold the. lands as aforesaid, afterwards, and after the _9£h of January, 1801, (the date of the bond) and at different times before the .commencement of this suit, received of certain •other parchas ws of the said lánds, several' other sums of money, viz: before the 27th of March, 180f, (when h'e was removed from office) the sum of 1,683 dollars 52 cents; and after that day the Sum of 17,191 dollars and 58 cents; which two sums amount’ to 18,875 dollars and 10 cents, which was all the money he received from the said purchasers! after the 9th of January, 1801; and that the poundage, and charges due to and paid by the said Giles upon the execution a,nd the said sales, and 
      ■legally chargeable against the proceeds of the said sales amounted to the suin of 1,332 dollars and 86 cents, which being deducted from the s. id sum of 18,875 dollars and 10 cents, left the yet sum of 17,542 dollars and 26 cents, in the hands of the said Giies, of the money so received by him afier the 9th day of Junuary, l80t. •That on the 13th of April, 1803, he paid part of the same, viz: 6,238 dolíais and 35 cents to Edward Livingston, who was then the United States-* attorney for the Mew York district, which payment vas so made ‘with tilt assent and approbation of the comptroller of the treasury of the IL.ited States, and agreeably to the uságe and pr. dice in that district; that the said Giles never had the said sum of 6,238 dollars and 35 cents, nór any part thereof, before the district Court to render to the United States and has never paid the same to the United States, in any other manner than by the said payment to the said Edward Livingston (if such payment was a payment to tin t. nited States) and never paid the same, nor any part thereof into the oihee of discount and deposit, kc.
    
    That as to another part of the said sum of 17,542 dollars and 25 cents, to wit: as to the sum of 4,479 dollars and 68 cents, the said Giles mver had the same, , nor any part thereof, before the district Court to render to the United States, nor paid the same into the said office of deposit, &e. but has ever since held and retained the same, claiming to hold and retain the same towards payment and satisfaction of an equal sum so due to him by the United Slates as aforesaid.
    That as to the residue of the said sum of 17,542 dollars and 25 cents, to wit: as to the sum of 6,824 dollars and 25 cents, the said Giles never had the same, nor any part thereof, before the district .Court to render to the United States, n >r paid the same to thé United States nor into the office of discount and deposit, &c. hut still retains the same ; hut whether, in law, lie converted the said three sums, viz: the 6,238 dollars and 35 cents — 4,479 dollars and 68 cents — and 6,824 dollars and 25 cents, or either of them to his own use contrary to the tenor and effect of the condition of his said bond, they are ignorant, &c; If in law .he so converted the whole to his own use, theii they so find and assess damages at 20,613 dollars and 12 cent's. If he did not so .convert the first of the said three sums, but did so convert the other two, then they so find and assess damages, at 14,374 dollars and 77 cents. If he did not so the first and second of the said three sums, but did so convert the third, then they so find, and assess . damages at 9,895 dollars/and 9 cents. If he did not so convert the said'third süm, but converted the two first sums, then they so find, and assess damages at 10,718 dollars and 3 cents: If he did not so convert the said second sum, but converted the first and third sums, then they so find and assess damages at 16,183 dollars and 44 cents. If lie did not so convert the t\yo last of the said three sums, but converted the first, they soi find and assess damages at 6,238 dollars.and 55 cents. If he; did not so convert the first and third of the said three sums, but converted the second, then they .so find, and assess damages at 4,479 dollars and 68 cents. And if lie did not so convert either of the said three sums to his own use, then they so find.
    3. As to the third breach, the jurors find that the Defendant, Giles,-did not receive Ihe sum of 39,000 dollars, and as to the judgment upon the demurrer respecting the retainer of the sum of 21,000 dollars, they assess damages at 21,000 dollars and 6 cents.
    , 4. As to the 4th breach, they find that the Defendant, Giles, kept possession ,of the said fourteen bonds, fi-oni •the 1st of February, 1801, until the 3d of January, 1803, when he. delivered tlv m with tlie assent and. approbation of the comptroller of the treasury of the United States, to Edward Livingston, then being the United States’ attorney for the district of New. York. That on the 12th day of the same January, the comptroller 6f the treasury of the United States, directed the said Giles to deliver the said fourteen bonds to his successor in office, John Swartrvout, marshal of the said district, which the said Giles did not do.
    But whether upon the whole matter aforesaid, he did, in law, convert the same bonds to his own use, contrary to the tenor and effect of the condition of his said bond, they are ignorant, &c. and if, &c, then they assess damages at 5,255 dollars and 73 cents.
    
      
      5. As to the fifth breach, they find, that the Befenwant, Giles, having levied and received the said sum of 309 dollars and 87 cents, never had the same before th- district Court to render to the United States, nor paid ihe same'to rhe United States, but retains the same claitniiig' to hold it in payment and satisfaction of so in.ich du - to him, bv the United States as aforesaid, but whether in law he converted the same to his own use, contrary to the tenor and effect of the. condition of his said bond ilicy are ignorant — -anil if, &c. then they assess damages ato09 dollars and 87 cents.
    6. As to the sixth breach, they find, that the Defendant. Giles, did not render to the auditor of the treasury of the United States all his accounts and vouchers, in manner and form as the Defendants in their rejoinder nave averred, and assess damages at six cents.
    This cause came up to this Court in the yeah 1812, with, a certificate from the Court below, that after argument upon the special verdict thereunto annexed, “it ap- “ peaked that the opinions of the judges were opposed « upon all the points submitted by and in the said special “ verdict, and thereupon' at the request oí the attorney “ of the United States for the said district, the judges “ of the said Court Have directed, this disagreement bf “ opinion to be certified,” &c.
    The cause was argued in this Court at February term, 1812, by Dallas <$• Pinkney, for the United States, and by Harper, for the Defendants.
    
    But this Court, upon inspecting the record, was of opinion that tlie pbints on which the opinions of the judges of the Circuit Court were opposed, were too imperfectly stated to enable this Court to form an opinión thereon.
    Whereupon the cause was remanded to the Circuit Court, and came back with a certificate that the opinions of the judges of that Court were opposed upon the ten following questions arising on the said special verdict, viz:
    l. Whetner judgment ought to be given for the Plain- • tiffs or for the Defendants, as to the sum of 3,763'dol-lars and 98 cents, being the damages assessed upon the first breach.
    Whether, &r. as to the sum of 20,6*3 dollars and 12 cents, being the first sum assessed as conditional damages upon the second breach.
    3. Whether, &c. as to the sum of 14,374 dollars and 77 cents, being the second sum assessed as conditional damages on the second breach.
    4. Whether, &c. as to the sum of 9,895 dollars and 9 cents, being.the third sum assessed as conditional damages on the second'breach.
    5. Whether,.&c. as to the sum of 10,718 dollars and 3- cents, being the fourth sum assessed as conditional damages on the second breach.
    6. Whether, &c. as to the sum of 16.133 dollars and 44 cents, being the fifth sum assessed as conditional damages on -the second breach
    7. Whether, &c. as to the sum of 6,238 dollars and 35 cents, being the sixth sunt assessed as conditional damages on the second breach,
    8. Whether, &c. as to the sum of 4,479 dollars and 68 cents, being the seventh sum assessed as conditional damages on the second breach.
    9. Whether, &c. as to the sum of. 5,255 dollars and 73 cents, being the damages assessed upon the fourth breach, and
    
      10; Whether, &c. as to the sum of 309 dollars and 87 "cents, being the damages assessed upon the fifth breach.’
    The cause was now again argued by Jones, for the United States, and Harper, for the Defendants.
    
    On the part of the Defendants it was contended,
    1. That the obligors in this bond, are not answer a»' ble for the money received by Giles, before the date of the bond.
    2. That he had a right to. retain the amount due to him by the United States.
    3. That his receiving the bonds was not an official act for which his sureties are liable upon this bond; but if it was, that he was discharged by delivering them over to E. Livingston, tiie attorney of the United States, with the assent of the comptroller of the treasury.
    4. That the sureties upon this bond are noi liable for the money received by the Defendant, Giles, after he was removed from office.
    5. That the payment of the <3,238 dollars and 35 cents, to E. Livingston, the attorney of the United States, for the district of Mew York, with tlie assent and approbation of the comptroller, was a good payment to the United States, and ought to be applied to the discharge of the first money which Giles received.
    1. This bond is prospective. It covers no past transgressions'. He received 3,763 dollars and 98 cents, before the date of the bond, and the United .States being indebted to him at the same time in a larger amount, be immediately applied and'retained it in part satisfaction of their debt to him. If he had no right so to do it was a conversion of it to his own use; and that conversion took place before the date' of the bond. The Defendants therefore are not liable therefor upon tiiis bond. If Gil ’s is answerable (hr. it to the United States, it.is not in this .action.
    2.' The Defendant, Giles, had a right to retain ip his hands the amount which was due to him from the United States.
    This is not claimed as a set off, but as an eqpitable deduction to be taken into view; by the Court in deciding what sum is to be recovered under the penalty of this bond. By the 26th § of the judicial art, vol. 1. p. 65, it is provided, “ that in all causes brought before eith- <( er of the Courts of the United States, to recover the ££ forfeiture annexéd to any articles Of agreement, cove- “ nant, bond, or other specialty, where the forfeiture# £‘ breach or non-performance shall appear by the default “ or confession of the Defendant, or upon demurrer, the Court, before whom the action is, shall render judgment «'therein for the Plaintiff to recover só much us is due “ according to equityIf then in this case there had bqen judgment bj default or upon demurrer, or even upon confession, the Court must have decided up- n the principles of equity. The case, if not within the words of the statute, is within its spirit. He who seeks equity must do equity. But the Defendant, Giles, was not a common debtor of the United States. He*was an agent of the government, o,r a receiver df money, and bound to account for what he received.. 1> account, is to retain what'he had a right to demand, and to pay over the balance only. If this principle, does not apply to the poundage in the case of Hicks, yet if;''does to. his expenses and compensation in taking the'census; ' B.y.the act of congress of the 38th of February, 1800, vol. .5, p. 2i, it was made his duty to commence tin*.business of taking the census, o,u the first Monday in Jliigust, ±800, and to close if in nine, months, and he was authorized,to employ assistants, and if he did. not make his return within the period limited, he was liable to 'a penalty of 800 dollars. The act provides for the compensation’ of the marshal and liis assistants,’ but no appropriation of money was made by congress for his payment, Until after the service had been performed, nor until .March# \%80±, Icyms , of the United States, vol. p. 800. The marshal had only three wmys to. Obtain the mphey necessary for this business, viz : either to advance.his own money, which he was- not boiibd to do, or to get an Odiance. from the treasury, which it Bad no right to make# Op’td apply the*,money of the United States in tils hands for. that purpose. Congress having ordered bin to do. the. work, gave him-the right to use all the necessary means.- The jury, has -found the fact absolutely tliat the United States was’indebted to him at the time, which fact cannot now bé denied. 'His obligation was not absolutely to-pay over all the money which he leceived, but'to account for it. ■ If he shows that he expended if for the use of the United States, in a work which he was required to perform, lie accounts for it. It-was not strictly retaining the money, but applying it in a manner in which he was authorized to apply if.
    
      He was aiso entitled by law to the poundage upon the ca. sa. against Hicks. By the act of the 2&t.h of February, 1799, vol. ft, p. 273, the marshal is allowed “ for all other services” not therein enumerated, « such fees « and compensation as are allowed in tiie « Court of the state, wherein such services are rcn- ** dered.”
    
    3, It was not the official duty of the marshal-to tak,e the bonds from the purchasers of the property.. He was only bound to execute all lawful precepts, according to the law of the land. He could officially Sell for money only ; not on credit. If by the order of the comptroller he sold on credit, he did not do it as marshal, but as the agent of the treasury department. The condition of his bond is'that he shall faithfully do-his duty. His sureties are not liable for any act not done in the course pf his duty. .
    But if he did act as .marshal in receiving the bonds, yet.his delivery of them to the attorney of the United States, with the Assent of the comptroller, is a complete discharge! and-if it were not, and .if the delivery ofthém to the.attorney of the United States he a conversion.of them to his own use, it- was after his removal from office, and the Defendants are not liable for it. on their bond. •
    4. The sureties upon this bond are not liable for money received by the Defendant, Giles, after his removal from office. The condition of the bond is that lie shall faithfully execute the duties of marshal « during his-continuance in the said office.” .Admitting that, for tiie purpose of. finishing the business in his hands at the time of his removal, his authority may continue quoad 1m, yet the liability of his sureties is expressly limited, by their contract, to the-time of his continuance in office. It is like the case of Arlington v..Mtrricke, 2 Saund. 4lá, which was an action by the post-master general against the sureties of one of his deputies, upon a bond, the condition of which was, «that whereas the Plaintiff had .appointed one Thomas Jenkins his deputy, &c. to execute the said office from, the 2bith of June next coming, for the term of Hop months next- following, now if the saiti Thomas Jeiikinsphall, for and during all the. time that he shall continue deputy post-rnaSter, &c. execute all the duties,” &c. The bread» assigned was i»r not paying over monies received by Jenkins, after the expiration of the term if six months, and upon demurrer it was held that the Defendant was only bound for monies received within the six months. 1 So in the. case of Barker, executor of Pyott v. Parker, 1. T. R. 287, the condition of the bond was that one J. H. should pay to E. Pyott, his executors or administrators, all such monies as he should receive belongijig to the said E,-Pyott* his executors or administrators ; but it Was held that the Defendant was not'liable for monics received by J. H. belonging to the executors of Pyott in their own right. S¿ also in the case, of the Liverpool Waterworks company v. .Atkinson, 6 East. 507, the,condition of the bond, reciting that.the Defendant had agreed with'the Plaintiffs, to collect their revenues «from time to time for twelve months,”' and after-wards stipulating that “ at all times thereaftei*, during “ the continuance of such, his employ ment, andfor so long •c as he should continue to- he employed,” lie would justly account, &c. was held to. coniine the obligation to the period of twelve months mentioned in the recital. A similar decision was given by the Supreme. Court of Pennsylvania, in the case of the - Commonwealth v.,- 'Bentofi, is Jjalk 28.2, upon a sheriff’s bond.
    5.- The payment to the attorney of, the United States, Which is’ found tti have keen in conformity witli the usage ift New York, and with the assent and .approbation of the comptroller of . the treasury, is a good payment to the United 'States,
    The United States are represented by their attorney, as to every thing relative to actions, in the same manner as a common person is represented by his attorney; an attorney at law has a right, within the.year and d,ay after judgment, to j’eceive payment of the debt, and to enter satisfaction of the judgment upon the record. Doug.' 623, Fates v, Freckleton. 1 Com. Dig. tit. Attorney f Bi 10. The comptroller is the agent of the United States for the purpose of assenting, and his assent binds the United States.
    The Defendant, Giles, received 3,763 dollars and 98 cents, before the date of the bond, and 1,683 dollars and 52 cents, alter that date and before his reinoval from, office, making together the sum of 5,447 dollars and, 50 cents. The payment of thé sum of 6,238 dollars and 35 cents to Mr. Livingston, not having been specifically appropriated to the payment of any particular part of the amount due from Giles, we contend ought to be applied to the pay.mei t of that part of the money which he first received, which will discharge all that the Defendants can be liable for upon their bond.
    
      On behalf of the United Statess it was said.
    ■ 1. As to the money received by Giles before the' date of the bond, it remained in his hand at the time the bond was executed. It was as much his duty to pay it over afterwards as it was before; and by not paying it over he was guilty of default for which his sureties are liable. Besides the writ was not returnable until after the daté of the bond, and there was no breach of his duty until after the writ was returnable ,when he ought .to have had the money in Court to render to the United States.
    2. As to the marshal’s right to retain money due to him by theU. States, it was said, that the claimhever han »«en submitted to.the accounting officersof the treasury, agreably; to the'provisions of the act of congress of the HU of March, 1797,.vol. 4, p. 423, § 4, by which it is er.acieu. «that in suits between the United States, and individuáis, « no claim for a.credit shall be admitted upon trial, but .« such as shall appear to have been presented to the ac- « counting officers of the treasury,for their examination, « and by them disallowed in whole or-in part,” &c. If a marshal might retain rnonev to answer his own claims, there would be no necessity of an appropriation by law; and it would subject the whole revenues of the government to the caprice of juries. The jury had no right to "find a debt due from'the'United States. It was a matter coram non judice, unless it had been first submitted to the accounting officers pf the treasury,
    
      A Defendant cannot sot off a dent, if he could not maintain .a suit for it. 4 Dull. 303. Commonwealth v. BlUcklock. This .Defendant cou[d not maintain a suit against the United States. To give him the benefit of the set oft’ would be a violation of the prerogative of the United States. •
    The Court stopped the counsel for the United States, upon this point, saying they were satisfied.
    3. As to the delivery of the 14 bonds to the attorney of the United States, it was said, that they were made payable to the marshal for the time being, and ought to have been delivered to his successor. That in taking the bonds he acted officially. He could only sell as marshal whether he sold for cash or on credit. A Plaintiff may wave a rule intended for his benefit and authorize a marshal to sell on credit. He had no authority to sell as agent, nor had'he any orders to deliver the bonds to toe attorney. The assent of the comptroller is not sufficiently found, for the jurors find a fact inconsistent with such assent, viz. that the comptroller ordered him to deliver them to his saecessor. The' violation of his duty in not delivering them to his successor was prior to his delivery of them to the attorney.
    4. As to the question whether the sureties in this bond are-liable for. the money received by Giles after the revocation-of his commission, it was said that-by the ,28th section of thh judiciary act, vol. , 1,- p. 67, “every .“ marshal, When removed from office, shall have power, “notwithstanding, to execute all such précepts as-may “he in his hands at the time of such removal,” and in cáse of the death of any marshal his deputies shall continue in office., unless otherwise specially removed, and shall exceutc-the same in the nama of the deceased, until another .marshal shall be appointed and sworn ; and the defaults or misfeasances in office of such deputies in the mean time, as well as before, shall be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them.
    .Here a liability is imposed upon the,sureties which is not expressed in the condition of the bond.
    
      The words, in the condition, “during his continuance;u, “in the said office," mean, so long as ho shall have aithority to act by virtue of the saidmffice. So-far as re-garden the execution and return of the writ of fieri facia*, against John Lamb, his authority to .act by- virtue of his office continued after the revocation of his commission. The writ was not completely executed until it was returned fully satisfied.. Quoad hoc he still continued in office within the meaning and intention of the bond, in all the cases cited b) the opposite counsel, the time was limito.d h/ months, and not by such a general expression as this. . The act of congress contemplates a course of duty and intended that the bond should'cover, all his responsibility, and no doubt the parties intended to give such a hood as the act required. Congress could not have'intended that upon the removal of a marshal, perhaps for wasting the public money, ct' for insolvency,-he should still go on to collect other monies, after hissureties upon his official bond should be discharged by his removal from office.
    5. As to the payment of the sum of 6,238 dollars and 33 eents, to the attorney of the United States, it was said, that the district attorney, as such, has no authority to receive the public money collected by the marshal. In common cases the authority of aii attorney at law arises from presumption, and is limited to a year and day after judgment, in which time, if execution be not taken out, the judgment is presumed to be satisfied. But as to the attorney for a government no such presumption of authority arises. Tlhe United States is con-; sulerod as a moral person opiy, and can only act by proper organs legally appointed; and their acts can bind the United States only so far as they act within the ¡lowers given them by law. In no other government does the law officer receive the public money without tlie order of the treasury. The treasury department is to manage the whole fiscal concerns of the nation. There is no exception in favor of the attorney of the .United States. His duty is only to support the . claims of. the United States. , There is no necessity that such a power should be lodged in his hands. He gives no security. Why should the money be taken out of the hands of a responsible officer and given to one not responsible ?
    
      But this payment.is claimed as a credit, and it is a sufficient answer, to say, that it has never been submit-ed to the accounting officers of the, treasury. - The'jmy had no right to find such a credit, or even to act upon it.
    But if it is to he considered as a payment to the United S tates, still it does not appear that at the time of payment it was applied to the disharge of any particular part of the money which Giles had received. The United States have therefore a right now to apply it to such part as tiiey please, and this Court will make such application of it as will be most bpneficial to the United States. That is to say, if the Court shall be of opinion that the sureties are not liable for the money received by Giles after his removal from'office, they, will apply this payment to that part of the debt, and leave the sureties .liable for the part received while he was in office.
    
      March 7th.
    
    Absent....Todd, J.
    
    
      
       Livingston-, 5. It has been settled in tiie Courts of New York that upon a ca. sa. the sheriff is entitled to poundage upon tiie whole sum due. But upon a ii. fa. he is only to receive poundage upon the sura receiyed. •
    
   Livingston, ,/,

delivered the opinion of the Court as follows: '

This is a joint action of debt o.n a bond dated the 9th of January, 1801, in the penalty of 20,000 dollars.

. The condition of the bond is as follows : Whpreas the above jmund A.quila Giles hath been appointed the marshal in and for the New York district, in pursuance of an act, entitled “an act to establish the judicial Courts of the United States,” nw, the condition of the preceding obligation is such, that if the said A. G. shall, bv himself and his deputies, faithfully execute all lawful precepts directed to. the marshal of the said district under the authority of the United States and true returns make, and in all things well and truly and without malice or partiality perform the duties of the office of marshal in and for the said district of New .York daring his continuance in the said office, and take only his lawful fees, then the obligation to be void, &c.

General performance is pleaded by the Defendants, to which a replication is filed assigning six breaches, to all ef which there was a rejoinder, sur-rejoindér and issue,.

On the issue joined on the first breach the special verdiet finds, that on the 20th of January, 1800, Ihe said Writ of rend. exp. andfi.fa. was delivered to Giles, who, before he proceeded to execute it, was authorized by the offic ers of the treasury to sell the land of Lamb, under said writ, for one fourth part of the purchase money 'in cash, one fourth part pay able in two years f, om the time of sale, one fourth part in three years, and the other fourth part in four years, with interest from the time of sale, to be secured by bonds and mortgages payable, to Giles as marshal, or to the marshal of the district for the time being, to and for the use of the United States. That on the, 17th of December, 1800, John Steele, being comptroller of the treasury, did instruct and order1 Giles to pay into the office of discount and deposit of t1 e bank of the United States in NeV York, to the credit of the treasurer of the United States, all the monies which might be levied from the property of Lamb, by virtue oí the said writ,of rend. exp. ¡xndf. fa. That under these instructions Giles proceeded to sell the lands of John Lamb* the sales of which commenced on the 26th of November, 1800, and were continued until the 23d of December in the same year. That during the sales and afterwards, and before the execution of the bond by the defendants, Giles received from some of the purchasers several sums amounting to S,71'3 dollars and 98 cents, and no. more, which sums were paid as the fourth of the purchase money of the lands bought by them. , That Giles has never brought' ibto Court, or paid into the bank either of the s'áid sumís, o'f. 50 dollars, which was,received on the' 20th of JánuáRw 1800, on a sale, by Giles, of the chattels of.L:\fflF, or-of 3,713 dollars and 98 cents, and that he never was.re* quired so to do by any order of the District Court That while Giles was marshal as aforesaid, a writ of capias ad satisfacievdum was issued out of said Court and delivered to him against Elias Iiicks, on a judgment recovered by the-United States, on which was indorsed a direction to Giles to levy the sum of 33,156'doL lars and 38 cents, besides marshal’s fees and poundage J that Hicks was arrested by Giles and in custody on said writ until, discharged therefrom by the secretary of'the; treasury/ that' the poundage fees of Giles thereon, if any Were due, have not been-paid to him by any oné, and that they amount* if due at all, to ,419 dollars and 57 cents.. That the United States became indebted to Giles, while marshal as aforesaid, in the sum of 8,133 dollars and 96 cents, for his fees and serv ices, in taking the se.cond census in his .district and for monies paid to his as-in taking the said ¡census, pursuant to the act in such case made and provided, which sums amount to 8,553 dollars and 53 cents,-in part payment of which Giles retains the two sums of 50 dollars, and of, 3,713 dollars and 98 cents. But whether in law foe. con verted them to his own use contrary to the form arid effect of the condition of the said bond, the. jurors pray the advice of the Court. If the Court shall think that it was such a conversion the jurors assess damages on this breach at. 3,763 dollars and 98 cents, But if the Court shall be of opinion that such retaining was no conversion then the jury fsay that hr did not'eonvert the .same to his use.

2. The second breachas signed, is,-that Giles having, on the. 17th of December, 1800, sold other lands of Lamb under the writ aforesaid for the further sum of 60,00® dollars, received ,the said sum on the 20th of January, 1801, (which was after the execution of the bond,) aud converted and disposed of the samé to his own use.

On the issue joined on this breach, the jury find that' Giles, having, made'the sales-as aforesaid, and under the instructions and orders aforesaid, received from the pug-chasers, after.the 9th of January, 1801,' aiid before the 27th of March, 1801, (when he went out of office) the sum of 1,683 dollars and 52 cents; and after that day the sum of 17,191 dollars aiid 58 cents, amounting in the whole to 18,875 dollars and 10 cents, which sums Svere paid by the purchasers, as the cash payment which was to'be made by them for the land so.purcliascd (which sales took-place between the 26th of November, and the 23d of December, 1S00.) That.the poundage apd charges due to and paid by Giles, arid legally chargeable against theproceeds of these sales; amounted to 1,332 dollars and 85 cents which leaves in the hands of Giles the net sum of' i7,542..dol!ars and 25 cents, of the monies received by him after the 9th of . January, 1801. That on the 13th of April, 1803, lie paid to Edward Livingston, who was district attqruey, tlie sum of 6,238 dollars and 35 cents, ’which was-receiptcd fog on the said writ of execution. That it was then and yet is the usage and pracfice within the said district for the marshal to pay to the district attorney all monies levied by executions issued hy file said attorney, in suits in which the United States are Plaintiffs, That this pay ment was made by and with the approbation of the comptroller of the treasury, and that Giles has never in any other way paid the said last mentioned sum to the United States, or brought it into Court in any Other way, than by paying it as aforesaid, to the district attorney. That as to another part of the said sum of 17,542 dollars and 25 cents, to wit, the sum of 4,479 dollars and 68 cents, Giles retains the same towards satisfaction of an equal sum due to him as aforesaid from the United States. That the residue of the said sum, to wit, the sum of 6,824 dollars and 22 cents, Giles retains to this day. B¿:t they pray the advice of the Court whether Giles converted to his own use, contrary to the condition of the said bond, the said several sums of 6,238 dollars and 35 cents, 4,479 dollars and 68 cents, and 6,824 dollars and 22 cents.

1. If he converted all of the said sums contrary, &c. then they assess damages at 20,613 dollars and 12 cents.

2. If he did not convert the said sum of 6.238 dollars and 35 cents, paid to Livingston, but converted the other two sums, then they assess damages at 14,374 dollars and 77 cents.

3. If he did not convert the two first sums, to wit, the sum of 6,238 dollars and 35 cents, and 4,479 dollars and 68 cents, but did convert the sum of 6,824 dollars and 22 cents, to his own use* then they assess damages at 9,895 dollars and 9 cents, ’

4. If Giles did not convert to bis own use the sum of 6,824 dollars and 22 cents, but did convert the. other two sums, then they assess damages at 10,718 doiiars and 3 cents.

5. If Giles did not cojnjert to his own use the said sum of 4,479 dollars and 681 cents, but did so convert the other two sums, they assess damages at 16,133 dollars and 44 cents.

6. If Giles did not convert to his own use the two sums of 4,479 dollars and 68 cents, and 6,824 dollars and 22 cents, but did so convert the other sum (if 6,238 dollars and 35 cents, then the damages are assessed at 6,238 dollars and 35 cents.

7. If Giles did not so convert the two sums of 6,238 dollars and SB cents, and 6,824 dollars and 22 cents, but did so convert the other sums of4,479 and 68 cents, they then find damages to the amount of 4,479 dollars and 68 cents.

8. If, in the opinion of the Court, Giles converted neither of those sum1, to his own use, contrary to the effect of the said condition, then the jury find that he did not so convert either of them.

On the issue joined on the fourth breach, the following facts appear on the special verdict. That on the 1st of February, 1801, Giles had in his hands, as marshal, 14 bonds, described in assigning the fourth breach, belonging to the Plaintiffs. That Giles continued marshal until I he. 27th of March, 1801, when ho was duly removed and dismissed from office, and John S.wartwout on the same day appointed marshal of the said district in his place, who continued marshal until the commencement of this .suit. That the said bonds continued in the hands of Giles until the. 3d of January, 1803, when they were delivered by him to Edward Livingston who was then district attorney, by and with the assent and approbation of the comptroller of the treasury. TliaCon the 12th of January, 1803, Gabriel Duval being comptroller of the treasury,’ as such did instruct, order and direct. Giles as late, marshall to deliver immediately the said 14 bonds to the said John Swartwout his successor* in office, .which lie did not do. If the Court shall think this was a conversion of these bonds, the jury assess.damages at 5,255 dollars and 73. If the Court think otherwise-the jury find it to be no conversion.

On the subject ofthe fifth breach,’it is found that Giles on the 1st of September. 1800, received as marshal 309 dollars and 87 cents, on an execution issued against one Richard Capes at the suit of the Plaintiffs, which he retains towards satis faction'of an equal sum due from them to him.* If this be deemed a conversion by the Court, the jury assess damages at 309 dollars and 87 cents, But if the Court shall not think so, then the jury, on this breach, find for the Defendants.

It is certified that the Circuit Court, were divided in opinion on the following points arising on this record.

1. Whether judgment should be given for the Plaintiffs or for the Defendants as to the sum of 3,763 dollars and 98 cents, being the damages assessed upon the first breach assigned.

2. The like question as to the sum of 20,613 dollars and 12 cents, being the first sum assessed as conditional damages, on the second breach.

3. The same question as to the sum of 14,374 dollars and 77 cents, being the second sum conditionally assessed on the second breach.

4. The like as to the sum of 9,895 dollars and 99 cents, being the third sum assessed conditionally on the second breach.

5. The like as to the sum of 10,718 dollars and 3 cents, being the fourth sum assessed on the second breach,

6. The like question as to the sum of 16,133 dollars and 44 cents, being the fifth .sum assessed on the second breach.

7. The like question as to the sum of 6,238 dollars and 35 cents, being the sixth sum assessed on the second breach.

8. The like question as to the sum of 4,479 dollars and 68 cents, being the seventh sum assessed on the second breach,

9. The like question as to the sum of 5,255. dollars and 73 cents, being thé damages assessed on the fourth breach.

10. ;The like question as to the sum of 309 dollars and 87 cents, being the damages assessed on the fifth breach. ■

The first point on which the direction of this Court asked, will require a decision of the following questions.

1, Had Giles a right to retain out of the public monies in his hands any sums which might be due to him for his services or for advances made by him ás marshal ?

2. Are the Defendants liable, under the condition of their bond, for the two sums of SO dollars, and of 3,713 dollars and 98 cents, received by Giles, the first sum on the 20th of January, 1800, and the other on some day prior to the 9th of January, 1801, which is the date of. their bond ?

The act of congi’ess providing for the settlement of accounts between the United States and the receivers of public monies, is so explicit as to preclude evei’y difficulty in deciding on the first question. The third section of the law provides, that where a suit shall be instituted against any pci’son indebted to the United States, the Court shall grant judgment at the return term, on motion, unless the Defendant shall in open Court make oath or affirmation that he is equitably entitled to credits, which .had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury, and rejected, specifying each particular claim so rejected in .the affidavit. The next section declares that in suits between the United Stales and individuals; no claim for a credit shall be admitted upon trial but such as shall appear to have been submitted to the accounting officers of the treasury for their examination and by them disallowed,' unh'ss it shall appear that the Defendant at the time of trial is in possession of vouchers not before in his power to procure, and that lie was prevented from exhibiting a claim for such credit by absence from the United States, or by some unavoidable accident.

It is clear then that if this had been an action against Giles for monies received by him as marshal, he could not have availed himself of any credit against the public, however well founded the claim might be, unless lie had previously submitted his title to sucli a credit to the accounting officers of the treasury and they had rejected the earnor unless he bad been prevented from so doing by one of the accidents mentioned in the law.

On this subject the special verdict, on the issue joined on the sixth.breach, finds that Giles did not render to the auditor of the treasury all his accounts and vouchers for the expenditure of monies received by him as marshal as aforesaid.

If then in a suit against Giles himself, a claim for these credits, under existing circumstances, could not be sustained, neither can it in an qction on this.bond, without permitting the -Defendants to do indirectly what the marshal could not have done directly, and in this way avail themselves of what the law seems to regard as a default,, or at least a negligence on the part of their principal.

- We are next to consider whether the Defendants-are liable for the sum of 50 dollars, and the sum of 3,713 dollars and 98 cents, received by Giles. The first sum was received on the 20ih of January, 1800, on the Ji. fa. and vend. exp. issued against the estate of John Lamb; and the other was received on the samé writ after the 27th of November, 1S00, but before the date of the bond upon which the action is brought.

It is contended by the Defendants that the retaining of monies which were received by Giles anterior to the elate of .the bond, cannot be considered a conversion by him within the terms of its condition j while the Plaintiffs on the contrary, maintain that as those sums were in his hands at the time of its execution and have not been paid over to this day, bis official delinquency is made out within the meaning of this instrument, and the responsibility of the Defendants thereby established.

On this point two of the judges think that the conversion of these sums by Giles was complete by his not paying them into the bank, agreably to the directions of the, comptroller of the, treasury under which. he acted and that this having taken place prior to the execution of the bowl'the Defendants are not liable therefor within the-terms of its condition which are entirely prospective. Two other members of the Court are of opinion that no demand appearing on the record to have been made on marshal for these sums, either by rule of Court or otherwise, no conversion of them is.made out; and ihat therefore the Defendants are no’t liable. The other two judges think that although these two sums were received before the date of the bond, yet as they remained in the hands of the marshal, afterwards, and have not been paid over to this day, the Defendants are accountable for them.

J udgment must therefore he rendered for tlie Defendants as to the suin of 5,763 dollars and 98 cents, being the damages assessed upon the first breach assigned..

The next question, on which the Court belowjwas divided, related to the sum of 20,613 dollars and 12 cents, being the first sum assessed as conditional damages upon the second breach.

By recurring to the special verdict it appears that Giles having had a fieri facias put into his hands on the 20th of January, 1800, against the real estate of John Lamb, was directed by the officers of the treasury, to make sales of it for one fourth of the purchase money in cash, and for the other three fourths on certain credits and securities specified in said instructions. These sales commenced on the 26th of November, 1800, and continued until the 23d of December, following.

After the 9th of Jánua.jy, 1801, and before he went out of office:, which was the 27th of March, following, Giles received of the purchasers of Lamb's'estáte, 1,683 dollars and-52 cents, am! after that day the sum of 17,191 dollars ánd 58 cents, amounting in the whole to 18,875 dollars and 10 cents. Deducting the poundage and charges which the special verdict finds to he legally chargeable against this sum, there was left in Giles hands the net sum of 17,542 dollars and 25 cents, of the monies received by him afterthe 9th of January, 1801. On the 13th of April, 1803, he paid to E. Livingston who was district attorney, with the assent and approbation of the comptroller of the treasury, the sum of 6,238 dollars and 35 cents.

Before we examine into the deductions claimed by the, Defendants against the sums received by Giles for cash payments, it will be necessary to settle for what portion of these sums they are chargeable under the condition of their bond.

Of these' sums a majority of the Court think they are liable for the sum of 1,6 S3 dollars and 52 cents, winch was receivéd between its execution and the marshal's dismission from office.

Arc they also responsible for the sum of 17,191 dollars and 50 cents, which was received by Giles after another marshal came into office ?

The bond, on which this action is brought having been, given for the faithful performance of the duties of Giles aS marshal, during Ids continuance in office, two of the judges are of opinion that his sureties are not liable for the conversion’of the last mentioued sum which took place after lie was out of office by not paying it as directed by the comptroller of the treasury. Two of the judges do not consider the finding of tiie jury as fixing Upoq Giles a conversion of .tins sum at any time,, in as much as it does not appear that he was ever demanded to pay. the s'ame into Court, or in any other way. The other two judges are of opinion that, the marshal, being authorized to do certain acts even after his removal from office, the condition of the bond embraces defaults committed after such dismission, as well as before, and that the Defendants are therefore liable for the said.sam of 17,491 dollars and 5’0 cents, although received by Giles afterbe ceased to be marshal.

It is however the opinion of a majority of the Court,, that the Defendants are not so liable under this bontíú .

Another question arises under this apposition of opinion in the Circuit Court; and that is whether the payment. to Edward Livingston ip April, 1803, was a payr ment to the United States ?

It is supposed tliat this payment, being made contrary to the comptroller’s order of the 17th of December, 1800, which was to pay ail monies received under this execution into the branch bank, at New York, cannot be regarded as valid. .

It is true such instructions are found by the jury, which certainly do not authorize such payment, yet it is.also found, possibly, from some, subsequent instructions of the comptroller, which,do not appear, or at any rate from evidence, which must have satisfied the jury, that such payment was made with the assent and approbation of the comptroller of the treasury. This finding, correct or not, must conclude the Court; and it has only to say whether a payment bé good if made under such authorityv'

The comptroller is authorized by law, “to directprosecutions to be commenced for all debts due to the United States.” During such prosecutions he gives directions how they shall.be conducted, and how the monies recovered shall be paid. If therefore he directed, or assented to, the payment to, Livingston, it is difficult to say that Giles erred, or was guilty of any fault, either in pursuing his instruction, or in making a payment with his assent and approbation.

It yet remains to settle, under this branch of the division of the Circuit Court, how the payment to Livingston is to be applied. For although the sum paid to hint is much greater than the sum of 1,683 dollars and 5Sf cents, for which if is decided that the Defendants aré liable, the benefit, which they may derive from such payment,, will depend in some Pleasure on the manner of its application.

It does not appear that any direction was given by Giles, or that any election was made by either party how it should be applied. Nothing more is known than that Giles,heingthenindebted to a much larger amount for monies received at different. times under the execution against the property of.Lamh, made this payment without declaring what particular item in the account of the United States against him should thereby be discharged! If there be no designation how a sum paid on account sliálí be credited, ana there be sureties for part of the debt, as was the case here, it seems reasonable to some of the judges, to let them have the benefit of it, by appiyingthe credit in such a way as to exonerate them, so far as the sum paid shall be sufficient for that purpose. regard be had to the order of time in w hich the monies were received by Giles, it will be seen that.the sum of 3,763 dollars and 98 cents, which is the first sum for which he is ui arrear, was received by him prior to the 9th of January, 1801; and the next sum for which ho is accountable, to w it: the sum of 1,683. doljars and 52 cents, came into his hands' after that dáy, but previous to thé 27th of March, 1801, and after this, other monies were received by him. These two sums together are not equal to the payment which was made to Livingston.

Following this order,, the. sum for which the Defendants are liable being among the fii.st that were received, and being recoverable with interest on their bond, would on this principle he extinguished by the first payment if it were sufficient, as was the case here, to discharge.all the monies which had been received.prior to' the receipt of the sum, for which the Defendants are answerable, and that also.; 'But, this is not the opinion of a fiiajority of the judg-s. They think, arid such is the decision of the Court, tfiat the United States have y.et a right to apply these payments in a way most beneficial to themselves and so as not to extinguish the sum of 1,683 dollars anti 52 cents, for which the Defendants áre’ accountable.

The Court then is of opinión that judgrheht musf be given for the Defendant^ ad to the, sum of 20,613 dollars and 12 cents, being the first sum assessed as conditional, damages upon the-second breach.

Judgment must in like manner be given for the Defendants as to all the other sums assessed as. conditional damages upon the second breach.

It is next to be decided whether the conditional damage's of 5,255 dollars and 73 cents, assessed on the fourth breach be recoverable against the Defendants.

These damages are given in consequence of a suppoied conversion by Giles of the fourteen bonds mentioned in the special verdict. But it being found that the sé bonds, were delivered to Edward Livingston, by and with the assent and approbation of the comptroller of the the Court is unanimously of opinion, for reasons already assigned, that such, delivery was no conversion of these bonds by Giles, and that therefore judgment must be rendered for the Defendants, as to the said sum of 5,255 dollars arid 73 cents, being the damages assessed as aforesaid on the fourth breach.

The last question which is submitted to us regards the sum of-309 dollars and 87 cents, which it appears by the finding under the fifth breach assigned, was received by Giles on the first of September, 1800, on an execution-at the suit of the United States, against Richard Capes, which was retained by Giles towards satisfaction of an equal sum due to him. This sum being received prior to the execution of the bond, must be regarded within the reasons assigned for not considering the Defendants liable for the two sums of 50 dollars and of 3,713 dollars and 98 cents, herein before mentioned, and judgment, must, accordingly* in the opinion of a majority of the Court be given for the Defendants, as to the said sum of 309 dollars and 87 cents, being the damages assessed upon the fifth breach.

It will be seen that the Court is of .opinion that the Defendants are liable under their bond for the sum of 1,683 dollars and 52 cents, which was received by ,the marshal after its. execution, and before he went out of office ; but by riot >one of the findings on the different breaches assigned, does it appear to have been contemplated that this sum alrine might be recoverable in this action, and. accordingly rió conditional damages are assessed to suit that state of the case.

' The Court therefore can only give its directions as to' the questions submitted to them, which are,

That it must be certified to the Circuit Court for the district of New York in the second cjrcuit,

1. That judgment must be given for the Defendants as to the sum 3,763 dollars and 98 cents, being, the dare ages assessed upon the first breach of the condition of the bond assigned in the replication of the Plaintiffs.

2! That judgment must be given for the Defendants as to' the several sums of 20,613 dollars and cents, of 14,374 dollars and 77 cents, of 9,895 dollars aud 09 cents, of 10,718 dollars and 03 cents, of 16,133 dollars and 44 cents, of 6,238 dollars and 35 cents, and of 4,479 dollars and 68 cents, being the several sums assessed, ás conditional damages on the second breach.

. 3. That judgment must be given for the Defendants, for the sum of 5,255 dollars and 73 cents, being the dar rnages assessed upon the fourth breach, and

4. That judgment piust be given for the Defendants for the sum of 309 dollars arid 87 cents, being the damages assessed upon the fifth breach.  