
    *Wilson & als. v. Burfoot, Treasurer. Two Cases.
    April Term, 1845,
    Richmond.
    (Absent Brooke,- and Stanard, J".)
    i. Treasurer of Commonwealth — Sureties—Responsibility. — The official sureties of the treasurer of the 
      Commonwealth are responsible for'Jail moneys, or otter.things received by him into the treasury, by virtue of his office, and not properly accounted for; though such moneys, or other things, have not been audited by the auditor; and the auditor has given no warrant or certificate authorizing the treasurer to receive the same.
    2. Same — Construction of Statute — Auditor’s Warrant. —The statute 2 Rev. Code, ch. 174, § 14, p. 4, which provides that it shall not be lawful for the treasurer to pay or receive ’ any money on account of the public, but on warrant or certificate of the auditor, does not apply to the receipt of other things than money.
    3. Same — Disbursements by — How Applied. — Where the treasurer has received money, and made disbursements on account of a particular fund, in the same year, the disbursements will be applied as credits upon the receipts of that year. But when he has made disbursements in a year in which he has received no money on account of the fund, in the absence of any instructions by him as to the application of these disbursements, they will be applied as credits to the moneys first received by him, and not properly accounted for.
    These were two motions made in the General Court, at the June term 1828, by Lawson Burfoot, treasurer of the Commonwealth of Virginia, against the surviving sureties of the late Jerman Baker, in his official bonds as treasurer for the years 182S and 1827. The condition of the bonds is, that “Baker shall faithfully account for all moneys and other things which shall come to his hands by virtue of his office, and perform all other duties thereof • according to law.” The parties appeared at the same term of the Court, and having craved oyer of the bonds, and of the conditions thereto annexed, pleaded conditions performed; upon which plea the issues were made up; and the jury empaneled *in°the causes found a special verdict, which was applicable to.both cases.
    From the special'verdict, it appeared that the treasurer, the plaintiff in these motions, claimed the sum of 5778 dollars 16 cents,with interest thereon from the' 1st of January 1826, till paid, to be charged on the bond of the late treasurer Baker for the year 1825, on account of the funds of the Cincinnati Society, previously received by him; and the sum of 2265 dollars 60 cents, with interest from the 1st day of January 1828, to be charged on the bond of the late treasurer for the year 1827, also on account of the funds of the Cincinnati Society previously received by him; for neither of which sums had the said Baker duly accounted.
    By the 12th section of the constitution of the Cincinnati Society, it was provided: “That the funds of each State meeting shall be loaned to the State, by permission of the Legislature; and the interest only, annually to be applied for the purposes of the society; and if, in process of time, difficulties should occur in executing the intentions of the society, the Legislatures of the several States shall be requested to make such equitable dispositions as may be most correspondent with the original design of the institution.”
    In December 1807, the Cincinnati Society of Virginia adopted resolutions, by which they declared: “That when the society shall be so reduced by death or removal, as to prevent a general meeting of the same, for the space of three years, to commence on the 4th day of July in the next year, it shall be the duty of such members of the standing committee as shall be in being at the termination of the said three years, to declare that the difficulties contemplated by the 12th section of the constitution have occurred; and after such declaration by the said members of the committee, and not sooner, the following ultimate dispositions shall take effect:”
    *“That the whole of the funds be presented to the seminary of learning denominated the Washington Academy, near the town of Lexington in the county of Rockbridge, as an endowment to the said seminary, as now constituted; and in like manner in any future elevation of its character; on this express condition, that there shall be established and continued in said seminary a military school, in which shall be taught, at least, the science of fortification and gunnery. In failure of this condition, the said funds shall be vested in-the Commonwealth, to be applied by the Legislature in like manner, on like conditions, and for the same object, to some other seminary: Provided always, That whenever-such transfer of the funds shall take place, all existing pensions which may have been charged thereon, shall continue so charged, and shall be secured to be paid, according to the terms of the respective grants.”
    The standing committee was directed to apply to the General Assembly for the pas-, sage of a provisional law, for the purpose .of carding into effect, in due time, the preceding resolutions; and, accordingly, upon the application of the committee, an act was passed on the 5th of February 1814; which after reciting the foregoing resolutions, and the 12th -section of the constitution, enacted: “1st. That the treasurer of the Commonwealth, for the time being, be, .and he is hereby authorized and required, to receive into the public treasury all or any part of the funds of the said society of Cincinnati; which said funds, when so received, shall be held by the Commonwealth, upon the terms, conditions, and finder the limitations, set forth in the before recited resolutions of the said society, and in the twelfth section of their constitution, and for the purposes therein expressed, subject, however, to the future resolutions and orders of the said society.”
    By the second section of the law, the treasurer of the State was directed to pay the pensions charged on the *fund, and any other charge of the Cincinnati Society: provided the same did not exceed the annual interest of the fund, according to the 12th article of their constitution.
    In January 1822, Francis T. Brooke, the vice-president of the society, addressed a letter to Col. John Bowyer, in which he suggested that it would be well to anticipate the period at which the funds of the society were to belong , to the college at Lexington; and he also suggested certain additional conditions to those contained in the resolutions of 1807.
    On the 19th of December 1822, the standing committee of the Cincinnati Society, reciting, that in their opinion the period had arrived when, according to the spirit of the resolutions of the society in 1807, the standing committee ought to assign over the funds, &c. to the trustees of the Washington College; and reciting also, that the trustees were willing to receive the same upon the conditions stated in the said resolutions, and on the farther condition provided in a letter from Francis T. Brooke, vice-president of the society, directed to Col. John Bowyer, and submitted by him to said trustees, adopted the following resolutions :
    “Resolved, That the funds, books, records, and papers of the institution, be assigned over to the said trustees, so soon as the assent of a sufficient number of members of the institution, (in addition to those present,) shall be obtained, by writing or otherwise, as will be equal to the number that would constitute a general meeting.”
    “Resolved, That Maj. James Gibbon be hereby authorized to correspond with the absent members; and to carry into effect the aforesaid resolutions, as soon as the assent aforesaid shall be by him obtained, in the manner therein stated, by assigning over to the said trustees the funds of the said institution; together with books, records, and papers belonging thereto, by writing under *his hand and seal, in the presence of two witnesses, in the name and in behalf of the Cincinnati Society of Virginia.”
    “Resolved, That to give full effect, and to perpetuate the said assignment, a copy thereof, together with a copy of the resolutions of the year 1807, aforesaid, and of the letter of the vice-president, before referred to, acknowledged by the said Maj. James Gibbon under his hand and seal, in presence of two witnesses before some magistrate of the Commonwealth, to be a true copy, be recorded in the County Court of Rockbridge.”
    Maj. Gibbon, having corresponded with the members of the society, obtained the assent of all of them to the foregoing resolutions ; and proceeded to transfer the funds of the society to the treasurer. At the time of the transfer he was a member of the Cincinnati Society of Virginia, and as such, joint owner of the funds transferred, and entrusted with the custody thereof; and he was the acting secretarj- of the society. On the 2d of October 1824, he made transfers of all the United States six per cent, stock, mentioned in the receipt of Baker hereinafter given, to the treasurer of the State of Virginia, for the time being, and trustee of the Cincinnati Society; which transfers were written on the certificates of stock, and signed by him as the agent of the society; and upon the said transfers being made, new certificates for this stock were issued to the treasurer of Virginia, for the time being, and trustee of the Cincinnati Society; and were delivered to the said Baker, then, and at the time of the transfer by Maj. Gibbon, being the treasurer of Virginia: but it does not appear what was the form of the transfer of the other funds of the society, mentioned in Baker’s receipts.
    When the transfer of the United States stock was made, it stood in the name of Willis Wilson, treasurer of the Cincinnati Society, and Maj. Gibbon had no authority from said Wilson or his representa-fives to make *the transfer; but Wilson was then dead, and the transfer was allowed at the loan office, upon the supposition that Maj. Gibbon was the agent of the society, and authorized to make the transfer; but according to the established usage at the said loan office, no stock standing in the name of any individual in his own right, can be transferred but by such individual himself, or his representative, or agent thereto duly authorized by letter of attorney.
    On the 13th of October 1824, the said Baker, then treasurer of Virginia, wrote and signed a receipt (endorsed on an authenticated mánuscript copy of the act of the Sth of February 1814), to Maj. Gibbon, of which the following is a copy:
    “Treasury Office, 13th of October 1824.
    “In conformity to the provisions of the within act of the gen’l ass’y of Virginia, I have this day received of Major James Gibbon the following certificates of stock belonging to the Cincinnati Society, viz: cer. No. 66, Virginia 6 per cent, stock, six thousand two hundred and thirty dollars seventy cents; cer. No. 28, United States six per cent, stock, three thousand four hundred and six dollars thirty-three cents; cer. No. 64, United States six per cent, stock, sixteen hundred dollars; cer. No. 57, United States six per cent, stock, five hundred dollars; No. 4569, certificate of ten sharps of Farmers Bank stock; No. 7423, certificate of twenty-three shares of stock of Bank of Virginia.
    Jerman Baker, Treasurer of the Commonwealth of Virginia. ”
    And on the 24th of July 1826, said Baker being still treasurer, wrote and signed another receipt to Maj. Gibbon, of which the following is a copy :
    “Richmond, 26th of July 1826.
    “Rec’d of Maj’r James Gibbon the promissory note of Mr. J. Nelson, dated the 9th of May 1823, for the sum of sixty dollars, payable on the 9th May 1824, to *Maj’r James Gibbon, for the use of the Cincinnati Society of Virginia.
    Jerman Baker, Tr. and Trustee of the Cin. Soc’y of Virginia.”
    The said Baker, on the days on which said receipts bear date, received from Maj. Gibbon the certificates and bond therein mentioned; but there was no audit of the said funds of the Cincinnati Society in the auditor’s office, or of any account thereof; nor was Baker ever charged with the said funds on the books of the auditor at any time; nor was ány account of, or touching these funds, ever raised in the auditor’s office, or in the books of the treasury; but Baker left memoranda in the office shewing his disposition thereof. From these mem-oranda, it appeared that in the year 1825 he received of these funds 10,644 dollars 16 cents; and in the year 1827 he received 2925 dollars, including dividends on the stocks and the proceeds of Nelson’s note. And in the year 1825 he disbursed 3926 dollars, including 3376 dollars expended in ■ the purchase of thirty-two shares of Virginia Bank stock; in> 1826 he disbursed 600 dollars; in 1827 he disbursed 550 dollars; and in 1828 he disbursed 350 dollars; leaving unaccounted for, of the sums which came into his hands, 8043 dollars 76 cents.
    None of the moneys received by Baker were audited in the auditor’s office, and no account thereof was raised on the books of the auditor; nor was the treasury or the treasurer' charged with the saíne on the books of the auditor. And when Baker received the different sums of money, he gave receipts for the same, to the persons-or officers' from whom he received them, 'which he signed “Jerman Baker, trustee of the Cincinnati Society.” And when he received the sum of 6637 dollars 77 cents, principal and interest of the public debt of Virginia redeemed, the auditor gave him two warrants for the same, by which he directed the treasurer to pay to Willis Wilson, ‘^treasurer of the Cincinnati Society; and Baker gave receipts therefor, in which he said “Received for Willis Wilson, treasurer,” &c.; and signed them as above stated.
    It appears that the trustees of Washington College were informed that some of the stocks transferred by Maj. Gibbon had been redeemed; as on the 7th of November 1825, they made an order, “that the treasurer of the Commonwealth be requested to invest the money of the Cincinnati Society in his hands, received for six per cent, stock of Virginia, and of the United States, in James river stock, or any other profitable stock which he can procure; and also, invest in like manner, any surplus money of said society that may be in his hands.”
    The assignment of the funds of the Cincinnati Society to'the trustees of Washington College, as required by the second and; third resolutions of the standing committee of the society of the 19th December 1822, was never executed by Maj. Gibbon.
    
    The jury found a verdict against the sureties in the bond for 1825, for the sum of 5778 dollars 16 cents, with interest at the rate of 6 per cent, per annum, from the 1st day of January 1826 till paid; and they found a verdict against the sureties in the bond for 1827, for 2265 dollars 60 cents, with like interest from the 1st of January 1828 till paid; subject to the opinion of the Court upon the special verdicts; and the Court subsequently entered up judgments for the plaintiff accordingly. From these judgments, the defendants prayed for appeals, which were allowed them.
    *The causes were argued orally, by Leigh and Stanard for the appellants, and by the Attorney General for the appel-lee ; and were afterwards argued in writing by C. & G. N. Johnson for the appellee, and Leigh and Stanard for the appellants.
    Stanard for the appellants.
    Sureties are only bound so far as they bind themselves; and the obligation of the appellants must therefore be measured by the condition of their bond. 2 Saund. R. 412; Miller v. Stuart, 9 Wheat. R. 680. That condition is, that Baker shall faithfully account for moneys coming into his hands in his official character. The question, therefore, is, did the funds of the Cincinnati Society come into the hands of Baker, by virtue of his office? - We say.no; because, first, Maj. Gibbon had no authority to transfer them to the treasury of the Commonwealth; and second, Baker had no authority to receive them as treasurer.
    Maj. Gibbon was a special agent, of the strictest form as to the subject, the object, and the mode of executing his power. He was directed to transfer the funds of the Cincinnati Society to the trustees of Washington College, by an assignment executed and recorded in a manner specifically pointed out. These directions were authoritative, because the whole subject to be disposed of was the property of the Cincinnati Society; and although the resolutions of the 19th of December 1822, are the acts of the standing committee, yet they provide for the concurrence of the members of the Cincinnati Society therein, before the act directed thereby is to be done: and that concurrence was obtained. These resolutions are, therefore, the foundation of Maj. Gibbon’s authority, to transfer the funds of the society; and his acts are only so far valid, as they are authorized bj them.
    If Maj. Gibbon had no authority to transfer the funds of the Cincinnati Society to the treasury of the *Commonwealth, of necessity Baker had no right to receive them as treasurer. Baker’s authority to receive them as treasurer, could only be derived from the Commonwealth; and this authoritj' must be shewn before these appellants can be held responsible for their loss.
    The authority of Baker to receive these funds into the treasury, is attempted to be derived from the act of February the 5th, 1814. This is a provisional law to carry into effect the resolutions-of 1807. These resolutions never authorized such an act as this is construed to be; but if they did, the law was never acted on by the Cincinnati Society. The funds were not transferred under the resolutions of 1807, but under those of 1822; and unless these resolutions authorized the transfer upon the terms prescribed by the act of 1814, this act could give no authority to Baker to receive them into the treasury.
    But if Maj. Gibbon had authority to transfer these funds into the treasury, and the treasurer had authority to receive them, they have not been so transferred or received, as to constitute them a part of the funds of the Commonwealth in the treasury, for which Baker’s sureties can be held responsible.
    The act of 1792, 1 New Series St. at Barge, p. 61, 1 13, was in force when the act of 1814 was passed; and the act of 1819, 2 Rev. Code, ch. 174, § 14, p. 4, was in force when the funds of the Cincinnati Society were received by Baker; and both are in the same terms. These acts prescribed that no money shall be received into, or paid out of the treasury, except on the warrant or certificate of the auditor of public accounts. This has always been the policy of the government; that she may not be made chargeable but by the joint acts of the auditor and treasurer; and that she may keep a check upon the treasurer, by requiring the concurrent action of the auditor. 9 St. at Barge 539, act of 1778.
    *Sureties contract on the faith of this law. They bind themselves for all moneys that come into the public treasury ; and they know that no money can legally come there, but by the warrant of the proper officer, of which a public record is kept; and these moneys are therefore under the supervision of the other authorities of the government.
    That these funds were not received in the manner prescribed by the statute is admitted. That moneys can only be received into the treasury in the manner prescribed by the statute, I submit, is clearly established by its terms; and the conclusion is therefore inevitable that the funds of the Cincinnati Society were not received into the public treasury; and the sureties of the treasurer cannot be held responsible for them.
    If Baker’s sureties are responsible at all, their responsibility is upon the bond of 1827. Although he received the funds in 1825 and ’26, there is no evidence that any part of the money was wasted before 1827. But if the Court shall be of opinion that the money received in 1825, was appropriated in that year, all the payments made by Baker should have been credited on the deficit of that year. United States v. Kirkpatrick, 9 Wheat. R. 720; Smith v. Boyd, 11 Beigh512; Postmaster General v. Pur-bur, 4 Mason’s R. 333.
    The Attorney General and C. & G. N. Johnson, for the appellee.
    It is objected that the funds of the Cincinnati Society never were in the hands of the treasurer by virtue of his office; and that, therefore, his dilapidation of them was no breach of official duty; and no breach of the condition of his official bond. To sustain this objection, two grounds are relied on: 1st. That the funds received by Jerman Baker were never audited by the auditor, or treated on the books of the auditor, or treasurer, as the law requires the public funds to be treated. *2d. That Maj. Gibbon, who transferred the funds to Baker, had no authority to make the transfer.
    As to the first. If upon the true construction of the act of 1814, it was the duty of the treasurer to receive these funds, it was his duty to receive them regularly, and treat them regularly; and if he has received them and treated them in an improper manner, this is a breach of official duty, for which the sureties would be responsible. It cannot be denied that the treasurer did, by colour at least of the act of 1814, receive these funds; and having so received them, whether regularly or irregularly, it was his official duty to preserve them for the purposes of that act.
    But it is not conceded that, by the laws of the land, these funds ought to have been audited. The act concerning the auditor and treasurer, 2 Rev. Code, ch. 174, $ 14, p. 4, declares: “It shall not be lawful for the treasurer to pay or receive any money on account of the public, but on warrant or certificate from the auditor, unless” in certain particular cases. We admit the case before us is not among the excepted cases; but we say it does not come within the terms of the law. The fund transferred to the treasurer was not money; but consisted of stocks and notes of hand. This does not seem to be a subject which properly addressed itself to the cognizance of the auditor. There was no public law by. which it was to be regulated, either as to quantity or quality. The auditor could not have measured it, or ascertained its value, by any standard furnished him by the law: how, then, could he have certified to the treasurer what was due, and what it was his duty to receive? This fund was to be paid into the treasury under a special act of the Begislature, for a particular purpose; and its quantity and kind depended -wholly upon the will of the society of Cincinnati, and their agents.
    *We submit, then, that it was not a fund which was required by law to be audited ; and that the laws enacted by the Begislature to check the treasurer by means of the auditor, and of executive committees, (2 Rev. Code, ch. 174, and Sup. Rev. Code, ch. 251, p. 313,) are inapplicable to this particular fund.
    The second ground of the objection, is, the want of authority in Maj. Gibbon to make the transfer. The letter and the spirit of the act of 1814, authorize and require the treasurer to receive the funds of the Cincinnati Society, without reference to the form in which they shall be transferred; and that with express intent that the funds so received should be held by the Commonwealth, upon the terms and conditions, and under the limitations set forth in the resolutions of the society, and in the 12th article of their constitution.
    Under this act, any-' agent of the society holding these funds, whether qualified to make a legal assignment of them or not, was justified in delivering them to the treasurer for the time being; and the treasurer was not only authorized, but required to receive them. Maj. Gibbon was the lawful holder of the funds of the society, as their secretary and acting treasurer. He transferred them in pursuance of the resolutions of 1807; and neither the society, or any member of it, has been heard to complain that it was improperly done. If the form of the transfer was not the proper one, that might have been a good objection in the mouth of the debtors of the Cincinnati Society when they came to pay off their certificates of debt; but they made no such objection; so that in fact the mode of transfer adopted has been effectual to put the Commonwealth in full possession of the funds of the society, without objection or complaint by any party entitled to speak upon the subject.
    But jt is objected that Maj. Gibbon, so far from-being-authorized to transfer these funds to the treasurer by delivery or otherwise, was authorized by the resolutions of *the standing committee, approved by the members of the Cincinnati Society, to transfer them only to the Washington College.
    We submit, that Maj. Gibbon never was authorized -to transfer these funds directly to the Washington College. The resolutions of 1807 directed how they were to be disposed of. On the 14th December 1813, the society adopted a resolution, that upon any proposition to change the final appropriation of these funds, each member residing in the State should have notice thereof, and be requested to give his vote thereon, in person or by proxy; and that notice of such proposition should be given by the president, in one or more of the public papers, and by circular letters to each member. This destination of the funds has never been altered by the society. On the contrary, in 1813, the standing committee applied to the Legislature for the passage of a law in conformity to the resolutions of 1807. And in December 1818, at a meeting of the,society, it was unanimously resolved, “that the meeting was opposed to any alteration in the former disposition of its funds. ’ ’
    This was the last meeting ever held by the Cincinnati Society. The law of 1814 was then in full force; and this, their final act, must be regarded as a full confirmation of that.law, and all its provisions.
    At the meeting of the society in 1818, a standing committee was appointed, to continue to act until the next general meeting. Beside some special powers, it was authorized to do “all other business not exclusively appertaining to the general meetings.” This authority certainly does not embrace the power to change the destination given to the funds of the society by ‘ the resolutions of 1807, and the law of . 1814. Nor is there any thing in their resolutions of the 19th of December 1822, which indicates such an intention. On the contrary, these resolutions evince, that the resolutions of 1807 was the basis of the action of the standing committee. *They make the declaration required by these resolutions; and they direct them, with Judge Brooke’s letter proposing some farther conditions to their gift, to be printed; and then direct the assignment to be made.
    Under these resolutions, Maj. Gibbon, who was a member of the standing committee which adopted them, transferred the funds of the society to the treasurer of the Commonwealth. We insist that he properly construed these resolutions, in thus acting; and that he could not have been justified under them, in transferring and delivering the funds directly to the trustees of the college. This would have been a plain violation of the spirit of the resolutions of 1807, the law of 1814, and the resolutions of 1818. And it would have been wantonly throwing away that security for the appropriation of the fund to the purposes destined by the society, which was contemplated in placing them under the safekeeping of the Legislature. On the other hand, the transfer and delivery to the treasurer, whatever was its form, was a substantial compliance with the resolutions of the society, and with the law. Thereby, according to the letter, and within the true spirit of the law, the treasurer of the Commonwealth for the time being did receive into the public treasury the funds of the society; and when so received, it became his official duty, acting for the Commonwealth, to hold them upon the terms, conditions, and under the limitations set forth in the resolutions.
    Leigh, and Stanard, for the appellants. The treasurer’s sureties are not liable but by the bond; they are not liable beyond the letter, and plain meaning of the bond. They are liable for all moneys or other things which he receives by virtue of his office, but not for what he receives under colour of his office. Thes are liable for the performance of the duties which are imposed by law, but not for the performance of duties which are not imposed *by law, on the office, but which the officer takes upon himself without authority of law.
    It was not competent to the Cincinnati Society, or its agent, or to the Washington College, or to Baker, or to all concurring, to constitute Baker in his official character of treasurer, in other words, to constitute, the public treasury, or the Commonwealth, the trustee for the management of the funds of the society. The treasurer may have made himself personally liable for the funds in question, without making- the treasury, or the Commonwealth liable for the same. This distinction between the treasurer and the treasury may seem nice and refined, and yet it is very obvious. The treasurer has a personal as well as an official capacity, whereas the treasury is a legal being, having no capacities but those with which the law endows it.
    If the funds of the Cincinnati Society were received into the treasury, they were not so received by Baker, as to make him officially, and his official sureties liable for his default in respect thereof. The funds were not audited. There was no warrant of the auditor to authorize Baker to receive the funds into the treasury; nor was any account of the transaction raised in the books of the auditor’s or treasurer’s office. The law of Virginia at the time of the transaction was explicit, in forbidding the treasurer to pay, or receive any money on account of the public, but on warrant or certificate of the auditor. 2 Rev. Code, ch. 174, § 14, p. 4. The purpose and policy of the provision was, that two officers should concur in every payment, and every receipt of public moneys; and that the auditor’s office should be a check upon the treasurer’s office. This appears by the same statute, I 18, 21, 22. The statute of 1820 is yet more explicit. Sup. Rev. Code, ch. 248, p. 311.
    It is said the statute only forbids the receipt of money, without the certificate of the auditor; and that these funds were not money. The argument requires *the most literal adherence to the words of the statute; and supposes that the sense and purposes of the law shall be wholly disregarded; and nothing but a literal compliance with its words required. Sensible of this, it has been farther argued that these funds were not within the mean-’ ing and spirit of the statute requiring the audit. But it is, surely, important that stocks belonging to the Commonwealth, and committed to the safe keeping of the treasurer, should be protected by the safeguards thrown around the public treasure; and the difficulty in auditing them vanishes, when, instead of requiring the auditor to fix a value, you direct him to describe them ; so that they will appear both upon the books of the auditor’s and treasurer’s office, as stocks of a particular description, belonging to the Commonwealth. So when the stocks were redeemed or sold, the proceeds thereof should again have been audited; the treasurer charged on the auditor’s books with those moneys ; and the Commonwealth credited on the treasurer’s books with the same moneys. But nothing of this kind was done. The funds themselves, or thf> moneys received by the treasurer on account of them, were in no wise audited; but on the contrary, Baker received the moneys, in a character with which the law did not endow him, as “trustee of the Cincinnati Society.”
    If Baker, under colour of the act of 1814, received the funds in question, that is, if he received them under a pretence that the act gave him authority to receive them, when it gave him no such authority, we utterly deny, that his receipt, under mere colour of legal authority, charged his official sureties with the duty of seeing that the funds were faithfully preserved and accounted for. Surely, the receipt of money or any other thing into the treasury, without legal authority, and the treasurer’s receipt therefor, could not charge the Commonwealth with the funds received; or subject his official sureties for that for which the Commonwealth is not *responsible. Otherwise it would be in the treasurer’s power, by giving a receipt in his official name, to charge his sureties for any money he could borrow on the credit of his official bond.
    Maj. -Gibbon had not in October 1824, any legal authority to pay, and therefore the treasurer had no legal authority to receive into the treasury the funds of the Cincinnati Society.
    From the circular letter of the general society to the State societies in 1788, and from the amended constitution of the general society, it is obvious that the plan proposed to the State societies for the conduct of their affairs, was that these last should apply to the respective State Legislatures for charters of incorporation; and should at once loan their funds to the State by the permission of the Legislature; which was by the charter to provide in case of “difficulties that might occur in process of time” for “equitable dispositions of the funds.” But in Virginia no charter was ever asked or granted; no loan to the State was ever proposed; and the State society continued to manage and dispose of their own funds, until the adoption of the resolutions of December 16th, 1807, and the passage of the act of February 1814.
    Obviously, this act permitted the Cincinnati Society to deposit its funds in the treasury, and did not require the society to deposit them there; and, therefore, notwithstanding the act, the society continued to manage its own funds, and to make dispositions thereof. It seems that in December 1817 there was a proposition to change the disposition which had been made of the funds by the resolutions of 1807, which in December 1818 was considered and rejected.
    Nothing can be more certain than that the society considered itself, notwithstanding the act of 1814, authorized to change the disposition of the funds; but that it determined to give them all to the Washington College; as it had before resolved to do by its resolution *of December 1807. And the society was clearly right in this opinion of its powers. More than three years had elapsed from the 4th of July 1808, without any declaration of the dissolution of the society by the failure of general meetings within that time. No difficulties had occurred within the meaning of the 12th section of the constitution as understood by the society; and as no such difficulties as those which the law intended to provide for had occurred, the law was in effect, inoperative.
    In January 1822, Judge Brooke wrote his letter to Col. Bowyer; and in December 1822, the standing committee adopted the resolutions under which Maj. Gibbon acted. In these resolutions, there is no reference, or allusion to the act of February 1814; no profession of intention to deposit the funds in the treasury for the benefit of the Washington College; but a plain donation directly to the college; and a direction to Maj. Gibbon to assign the funds, records, and papers, to the trustees of the college, in a certain prescribed mode. The act of February 1814, had never been executed, and had become inoperative; and it was not the intention of the committee in 1822 to execute it, but to dispose of the property of the institution, according to the will of the society, without the intervention of the Legislature: a disposition which the society had a perfect undoubted right to make.
    All the members of the society declare their assent to the resolutions of December 1822, some immediately, some shortly after-wards, ' all in 1823 and 1824. Thus Maj. Gibbon had full authority to assign the funds to the Washington College, and no authority to transfer them to the treasury. And if he had no authority to transfer them to the treasury, then the treasurer could have no authority to receive them.
    Baker was the trustee of these funds for the Washington College, not for the Commonwealth. It appears *by his own receipts, that he so considered himself, and by the acts of the college that it so considered him. By their resolution of November 1825, the trustees of the college directed the treasurer of the Commonwealth to invest the money of the Cincinnati Society in his hands in James river stock, or any other profitable stock he could procure. ' Now, if these funds, and the moneys received on account of them, were part of the treasure of the Commonwealth, the trustees of Washington College had no right thus to direct the disposition thereof: the Legislature alone had such right.
    But supposing the judgments right in holding . Baker’s official sureties liable for this default, it seems to us they are still wrong in the dates from which interest is adjudged. The sureties are not responsible for interest from the end of the year when Baker received the moneys, but only from the date when he committed the defaults. His defaults were only ascertained at his death. Had he held them till the day of his death, his sureties would have been exempt from all responsibility for interest. Therefore they can only be held liable for interest from the date of his death, for till then there was no default.
    
      
       Judge Brooke was a member of the Cincinnati Society. Judge Stanard had been counsel in the cause.
    
    
      
      By consent of the parties in the Court below, the records of the Cincinnati Society were made a part of the special verdict, but they have not come into the possession of the reporter. References to facts in them will therefore be found in the arguments of the counsel, and the opinion of the Judge, which do not appear in the statement of the case.
    
   ALLLN, J.

The 12th section of the constitution of the Cincinnati Society, provided, that the funds of each State meeting shall be loaned to the State, by permission of the Legislature; and the interest only, annually to be applied to the purposes of the society; and if in process of time, difficulties shall occur in executing the intentions of the society, the Legislatures of the several States shall be requested to make such equitable dispositions as may be most correspondent with the original design of the institution.

It appears by the circular of the general to the State societies, of the 3d May 1784, referred to in the argument, that one of the leading motives for the adoption *of this provision of the constitution, was to remove all causes of jealousy and suspicion, by letting the Legislatures see the application of the funds was to the best purposes. The circular further directed, that the Legislatures should be solicited to grant charters; and the 6th section of the amended constitution contains a similar provision. The whole scheme, as contained in the amended constitution, embraced the loan or deposit of the money with the States; the management, control, and disposition of the funds by charter; a restriction that interest only should be annually disbursed; and a provision for the present security, and ultimate destination of the funds, when difficulties should occur by the death of members, in executing the intentions of the society. No charter was applied for or granted in Virginia. The society, as such, continued to manage its funds; and they were not loaned to the State. In this condition of affairs, the society adopted the resolutiqns of the 16th December 1807. By these resolutions, the standing committee was required to declare, when from death or removals, the society should be so reduced as to prevent a general meeting for the space of three years, that the difficulties contemplated by the 12th section of the constitution had occurred. The resolutions then proceed to make an 'ultimate disposition of the funds, when that fact shall have been declared; provide that when such transfer of the funds shall be made, existing pensions charged thereon shall continue charged and paid; and that the General Assembly should be solicited to pass a provisional law for carrying into effect the preceding resolutions. The first question that arises upon these provisions of the constitution, and the resolutions of the society, is as to the mode they contemplated and provided for the ultimate disposition of their funds. Was an immediate and direct transfer of the funds to the college intended? or did they look to the mode pointed out in the 12th section of the constitution, by a loan to the *State, and an appropriation of the funds for the purposes contemplated, through the instrumentality of legislative provisions? The cotemporaneous expositions, both by the society, and its agents, and the Legislature, evince the understanding of all, at that time, that the latter mode was the one contemplated.

The funds were not given to the college absolutely, but upon the express condition that there should be established and continued a military school; and on failure of:' this condition, the funds were to be vested in the Commonwealth, to be applied by the legislature, on like conditions, to some other seminary. This condition, upon which the endowment depended, was precedent so far as respected the establishment of the military school; it was subsequent as.to its continuance. Whether under the charter, the college could have established such a professorship or not, is not, as it seems to me, material to the enquiry. The resolution looked to some legislative provision regulating the endowment; and securing the continued appropriation of the funds either there or in some other seminary, to the object in view. And to secure such appropriation, and the payment of the pensions charged on the interest, in the interval, the funds, according to the 12th section of the constitution, were to be paid to the State. If this was not the intention of the society, why was the Legislature to be solicited to pass any provisional law on the subject? The college was incorporated, capable of receiving the donation, liable for the charges on it, and if, as has been argued, it was not precluded by the amended charter from adding another professorship to the four thereby provided for, there would seem to have been no necessity for the intervention of the Legislature, if the sole object had been to transfer the funds to the college. The fact that such law was to be applied for, proves that the society contemplated the transfer in the mode pointed out by the 12th section of the constitution, by a loan to the State *and a legislative sanction to the ultimate destination of the funds. So understanding their resolutions of 1807, application was made for the passage of the provisional law thereby contemplated; and the act of February 5th, 1814, was passed. It recites the resolutions, the 12th section of the constitution,, and the application for the law; and then directs and requires the treasurer to receive into the public treasury the funds of the society; and enacts that the funds shall be held by the Commonwealth upon the terms set forth in the resolutions of the society, and 12th section of the constitution, subject to the future resolutions of the society; and furthermore directs the treasurer to pay the pensions charged on the fund, and any other charge of said society; provided the same shall not exceed the annual interest on the fund; according to the 12th section of the constitution. The act, by referring in the preamble to the 12th article of the constitution, in connection with the resolutions, and in the second section, by limiting the payments on account of pensions or other charges, to the annual interest, clearly indicates the meaning and intention of the Legislature to receive the funds, and hold them for the purposes of the society, according to the provisions of the 12th section of the constitution. When they should be received into the treasury, the State assumed the obligation to preserve them, to pay the pensions and demands of the society, to hold them subject to the future resolutions of the society, and to dispose of them in pursuance of such resolutions, or if none should be made, then according to the resolutions of the 5th February 1807.

Whether the Commonwealth had such an interest in the ultimate destination of the funds as to entitle her to receive them into the public treasury, is not a subject for our enquiry. She has agreed to receive them for those purposes. She has assumed the responsibility of seeing that they shall be so disposed of, and this obligation is *sufficient to entitle her to recover the money, and preserve the funds for the ultimate objects of the trust. Reference has been made to subsequent proceedings of the standing committee and the society, to shew that by some subsequent acts of the society, or the committee, the destination of the funds was changed, so far as to require a direct transfer to the college. The standing committee would seem to have had no authority to change the disposition of the funds. That could only be done by the society; and the acts of the society at their meetings in December 1813, and December 1818, the first directing application to be made for the law; and the last, after its passage, refusing to alter the disposition of the funds, evince a determination to carry out the resolutions of 1807; and shew that the law which had been enacted, was regarded as conforming with the resolutions as understood by the society.

The standing committee, in their resolutions of the 19th December 1822, did not contemplate a different disposition of the funds from that previously prescribed. Their action was grounded upon the resolutions of 1807; and their proceedings must be construed with reference to those resolutions and the subsequent law. They speak of the time having arrived when according to those resolutions the funds should be transferred; and as the college had announced its willingness to receive the funds on the conditions stated in the resolution, they direct a transfer to the college not only of the funds, but of the books and records of the society by a deed, and that a copy of the assignment, with the resolutions of 1807, should be recorded in the county of Rockbridge. The reference here again to the resolutions of 1807, shews that no change in the disposition of the funds was contemplated. If a literal compliance with the last resolution would have involved a violation of the resolutions of 1807, it would have been the duty of the agent to conform to the provisions of the previous resolutions, *and the law, by delivering the funds to the treasurer. But it would be doing violence to the resolution of the standing committee to give it a construction which would defeat the resolutions of 1807, when upon the face of the resolution, they declare they are acting in accordance with the spirit of these resolutions. The college was, by the standing committee, constituted the final depositary of the books, records and papers of the society. The transfer and assignment directed by their resolution, extended to these articles, as well as the funds; and the assignment they directed, was merely intended to preserve record evidence of all the resolutions, orders and proceedings, which resulted in making the college the beneficiary of the society, and depositary of all its records.

It seems to me, therefore, that the society looked to a transfer of its funds to the treasury, by the resolutions of 1807, in conformity with the 12th article of the constitution, provided the legislature would authorize it. That to effect this object, the resolution of 1813, directed an application to be made for the law. That after the law passed, the. resolution against any alteration in the former disposition of their funds was a confirmation of the law; and that the subsequent proceedings of the standing committee' were intended' to carry out those resolutions of the society, and not to change them. I therefore think the agent who had the funds under his control was authorized by the acts of his principals, in making the transfer to the Commonwealth. And further, that as the Commonwealth agreed to receive the funds; and came under an obligation to apply them according to the dispositions of the society, she has an interest in the subject which authorizes a proceeding at her instance for their recovery.

It is objected that the agent did not pursue the mode of transfer prescribed by the standing committee. It ■ was not done by deed. This, it seems to me, is a question *not arising as between these parties. The law authorized the receipt of these funds. The agent having them under his control has transferred them. His principals raise no objection to the mode. If the treasurer was bound to receive and has received the specific funds, he becomes accountable. But the resolutions of 1807, and the law authorizing the receipt into the treasury, are silent as to the form to be pursued by the agent in paying or transferring them. Whenever they reach the treasury, by the transfer of one having control of them, they are there under the resolutions of 1807, and the law; and are to be held by the Commonwealth upon the terms set forth in the resolutions.

If then the resolutions authorized a transfer of these funds to the Commonwealth, and it was the duty of the treasurer, under the law of 1814, to receive them into the public treasury, it becomes necessary to enquire whether they were ever received into the treasury. The first acts of Baker are evidenced by his two receipts, the first dated “Treasury office, 13th October 1824,” and the second dated “Richmond, 26th July 1826.” The first and principal receipt, was endorsed on a copy of the act of 1814; sets out that in conformity with its provisions, he received of Maj. Gibbon, the following certificates of stock belonging to the Cincinnati Society; and is signed by him in his official character as treasurer. The second receipt is signed by him as treas-1 urer and trustee of the Cincinnati Society. In executing these receipts, did he act officially, and receive these funds by virtue of his office, having legal authority to receive them; or was it a receipt under colour of his office, under a pretence of legal authority when he had none? The condition of the treasurer’s bond requires that he shall faithfully account for all moneys or other things which shall come to his hands by virtue of his office, and perform all other duties thereof according to law. The law contemplates that the treasurer may have the ^custody of other things, the property of the Commonwealth, .tlian,.money, Ror these,-- as well as moneys in the treasury, he is made accountable. The act of 1814 authorized and required the treasurer for the time being to receive into the public treasury the funds of this society. These funds did not consist of money, but certificates of stock, evidences of debt. The receipt of the funds then was legal. He was required by law to receive them into the treasury; and when, as treasurer, he receives them, says he receives them in conformity with the act, and that aGt requires the receipt to be into fctredreas-ury, is it not clear that he regarded it as a receipt into the treasury? The addition of the words, “that he as treasurer received the funds into the treasury,” would not more clearly express the intention with which the agent transferred, and he received, than is imported by the words used. Was it essential to charge Baker officially, and consequently his official sureties, that these funds should have been audited. The law declares that it shall not be lawful for the treasurer to pay or receive any money on account of the public, but on warrant or certificate of the auditor. These funds were received by Baker without any warrant of the auditor to receive them into the treasury, nor was any account of the transaction raised in the books of the auditor’s or treasurer’s office.

It seems to me the provisions of law touching the auditing of accounts, and prohibiting the payment or receipt of any money; except on warrant of the auditor, cannot’' be-"made to reach a case;- where no money is received or paid. The value of the subject was uncertain. It might have consisted of plate, jewels or other articles. How could such a subject be audited and the amount certified to the treasurer? The auditor might have given a warrant specifying the articles of property, whatever they were, and a receipt could have been given for them. But the law made this no part of the auditor’s Muty. It speaks of money alone. If, therefore, the auditor was not bound to audit, the receipt without a warrant was regular. But if this was not so: If the funds should have been audited, and this has not been done, how does that affect the case? If the law required an audit to justify the receipt into the treasury, the treasurer violated his duty and was guilty of a breach of his official bond; for that binds him to perform all other duties of his office. He was bound to receive these funds into the treasury. If the law required an audit, it was a violation of duty to have received them without the audit. I do not perceive how he can be permitted to object that though the funds are in the treasury, are funds belonging to, or for which the Commonwealth is responsible, and as such, under his control as treasurer; still they are not funds for which he is officially responsible, because they were irregularly received. The argument that the treasurer could not bind his sureties by giving his receipt as treasurer for money borrowed by him, or effects deposited in his hands, is certainly true; but has but little if any bearing on this question. In the case supposed, the Commonwealth has no interest in the subject. But if a public debtor, ■ or collector, or agent, has in his hands a sum of money; the property of the Commonwealth, receivable into the public treasury, and through mistake or ignorance, he pays it over to the treasurer, who receives it into the treasury without audit, would not the treasurer be responsible? The debtor might not be discharged; the money being irregularly paid he could not obtain a quietus; but would the Commonwealth be compelled to resort to him for payment? Would not good faith require her to pursue her own officer, who had thus irregularly received the fund? And would it be competent for him to rely on a breach of his duty in receiving, to relieve him from his obligation to account: to discharge a latter official delinquency, by setting off against it a prior one? And where would *such enquiries lead us? Suppose in this Case the treasurer who received, and the treasurer who converted were different individuals, and officially the officers may be so considered here. A treasurer then, in pursuance of this act of 1814, received into the treasury without audit, and therefore, let it be conceded irregularly, these funds of the society. When received they were to be held by the Commonwealth. They are so held by the treasurer who received, and he passes them over unchanged to his successor. Is he not responsible, and responsible officially, for them? Could he be permitted to allege the irregularity of his predecessor as relieving him from his official liability? It would not be pretended in such case that he was not responsible on his bond. But is not that the case before us? Baker received these funds, except the note for 60 dollars for which the second receipt was executed, on the 13th October 1824. So far as the record discloses, the funds remained in the treasury unchanged during the residue of his then term of office. They passed into his hands the succeeding year, and though, in the first instance, they may have been irregularly received into the treasury, when they reached the treasury, they were held by the Commonwealth precisely in the same condition as if they had been transferred to her in absolute property. As part of the funds of the Commonwealth they went into Baker’s hands under his new appointment. Being in the treasury, they came to his hands, by virtue of his office, and he was bound by the condition of his bond to account for them. Instead of holding and accounting for them, he, during the year 1825, converted the greater part into cash.

It has been argued, the law requiring the. audit is for the benefit of the sureties; they contract with reference to it, and have a right to require the evidence furnished by audit before they can be charged.

The law, it seems to me, is a fiscal regulation, for the convenience and safety of the Commonwealth. If the ^argument were sound, the provisions of the law would constitute part of the terms of the contract; and would be unalterable during the treasurer’s term of office. The law now requires the payment of money to be made in bank on the certificate of the treasurer. It might with as much propriety be contended the sureties contract with reference to this law, and therefore a change could not be made. The contract of the sureties is that the treasurer shall faithfully account for all moneys and other things which shall come to his hands by virtue of his office, and perform all other duties thereof. The audit is one mode of shewing what money has come to his hands by virtue of his office; but it is competent for the legislature to dispense with it entirely, and then other evidence must be offered. The law requiring the audit does not, therefore, enter into the contract of the surety. If, by other evidence, it is shewn that money has come to his hands by virtue of his office, it is covered by the condition of his bond. A different construction would be holding out indictments to a faithless officer to get possession of the funds of the Commonwealth irregularly, so as to relieve his sureties.. I therefore do not think the failure to audit these funds can be relied on by the defendants in either of the bonds as protecting them from liability.

The agreement of facts submitted to the Court below to decide whether the respective sureties of Jerman Baker, bound in his official bonds for the years 1825, and 1827, were liable for the sums of 5778 dollars 16 cents, and 2265 dollars 60 cents, with interest from the first days of January 1826 and 1828, or for either of those sums, or for any part thereof; and if so liable, for how much respectively.

The Court gave judgment against the sureties of 1825 for the larger sum, and against those of 1827 for the other sum, with interest as aforesaid; and it is insisted the Court has distributed the liability and applied the ^credits improperly. As this branch of the case was merely adverted to in the argument, I have had some difficulty in satisfying myself from the agreement of facts, as to the scheme of the account. It appears from the memoranda left by Baker in the office, and admitted to be correct, that in the year 1825, be received from the certificates of stock, the funds of the society, the sum of 10,544 dollars 16 cents. This was a conversion during that year, for which the sureties in the official bond of 1825 were liable, except so far as it can be reduced by disbursements applicable thereto. In 1826, there was no conversion, but in 1827 he seems to have' converted, and received as dividends sums amounting to 2925 dollars 60 cents; for which, so far as unaccounted for, the sureties of that year were responsible.

There were disbursements in payment of pensions, and for the purchase of bank stock, in each of the years from 1825 to 1828, inclusive. The disbursements of th§ year 1825, amounting to 3926 dollars, were properly .applied to the liability of that year, reducing it from 10,544 dollars 16 cents to 6618 dollars 16 cents; and if I understand the mode by which the sum for which judgment was given was arrived at, this sum of 6618 dollars 16 cents, was further credited by the disbursements of 1827 and ’28, deducting therefrom the 60 dollars, the amount of Nelson’s note. The disbursements of those two years amounted to 900 dollars. Deducting therefrom the 60 dollars, there remained 840 dollars to be credited, which left 5778 dollars 16-cents, the sum for which the judgment was rendered.

So stating the account, the 60 dollars, the amount of Nelson’s note, must have been deducted from the conversion of 1827, and charged to the year 1825, or which is the same thing, deducted from the credits applied to that year. The sum converted in 1827, including the 60 dollars, amounted to 2925 dollars 60 cents; deducting the 60 dollars, and the disbursements of 1826, for which credit *seems to have been given to that year, and there remains 2265 dollars 90 cents, for which the sureties of that year were held responsible. If this was not the mode by which the several sums were arrived at, I have not been able to discover it; and I infer it was the mode because the result arrived at agrees. But I am not satisfied with its correctness upon principle. The sureties of 1825 were properly held liable for the sums converted during that year, 10,544 dollars 16 cents; and properly credited with the disbursements during the same year, amounting to 3926 dollars, reducing their liability to 6618 dollars 16 cents. There was no conversion in 1826. The treasurer held stocks upon which interest was accruing, and received by him. There were pensions chargeable on the annual income. The sureties of 1826, if there had been any conversion during that year, as they could only have been responsible for the funds in his hands, would have had a right to insist upon the application of the income from the fund to the disbursements chargeable for that year on that income. And so the sureties of 1827 would have the same right to consider so much of the income accounted for. It was therefore proper to apply the disbursements of 1826 to the liability of 1827, as seems to have been done; that liability being in part made up of 1265 dollars 60 cents, dividends on stocks, besides Nelson’s note for 60 dollars. But I can see no reason for throwing the 60 dollars, Nelson’s note, on the year 1825, as was done by charging it to that year, or deducting it from credits applicable to that year. The note was delivered to Baker in July 1826, and is charged to him in the memoranda as received in February 1827; and was therefore chargeable to that year. As to the credits, for the same reason that the sureties of 1827 were entitled to a credit for the disbursements of 1826, they are equally entitled to a credit for the disbursements of 1827.They are credited with the disbursements of 1826, because those disbursements *were a charge on the income of the fund unconverted. That income from dividends in 1827, is charged at 1265 dollars 60 cents, more than enough to cover the disbursements of both years. I think, therefore, they should have been credited with the disbursements of 1827, equal to 550 dollars.

As there were no receipts in 1828, the disbursements of that year must be applied •to 1825, that being the first liability, and no application of the credit having been made by the debtor. The account so stated will stand as follows:

Dr. The sureties for 1825,
to 10,544 16
Cr. By disbursements of
1825, 3,926 00
Cr. By disbursements of
1828, 350 00
- 4,276 00
$6,268 16
Dr. The sureties of 1827,
to 1,600 00
Dr. The sureties of 1827,
■ to 1,265 60
Dr. The sureties of 1827,
to 60 00
2,925 60
Cr. By disbursements of
1826, 600 00
Cr. By disbursements of
1827, 550 00
1,150 00
$1,775 60

As to interest, it seems to me, it was properly charged to the sureties; the money was converted in 1825, and 1827, and since then, is unaccounted for. The act of conversion was illegal. Before that time an income was derived from the funds, and the interest should be charged from the end of the year, bn the balance converted in that year, and unaccounted for.

As to the sureties for 1825, the Court, I think, erred in their favour, by rendering a judgment against them for " 5778 dollars 16 cents, instead of 6268 dollars 16 cents, for which error, under the rule adopted 2d October 1811, (see Day v. Murdoch, 1 Munf. 460,) the judgment must be reversed, and judgment entered for 6268 dollars 16 cents, with interest from 1st January 1826, until paid.

As against the sureties of 1827, there was error in rendering judgment against them for 2265 dollars 60 cents, instead of for 1775 dollars 60 cents, for which error, the judgment should be reversed and judgment entered for the latter sum, with interest from the 1st January 1828 until paid.

BALDWIN, J., concurred in opinion with Allen, J.

CABBLL, P.,

dissented. He was of opinion that the judgments should be reversed, and judgments entered on the special verdicts for the appellants.  