This was an action of debt, commenced by the United States, in the Court below, against the defendants in error, J. Kirkpatrick and others, as the obligees of a bond, given by them to the United States, on the 4th of December, 1813, conditioned for the true and faithful discharge of the duties of the office of Collector of direct taxes and internal duties, by Samuel M. Reed, who had been appointed to that office by the President, on the 11th of November, 1813, and, by the terms of his commission, was to hold his office during the pleasure of the President, "and until the end of the next session of the Senate of the United States, and no longer." On the 24th of January, 1814, he was re-appointed to the same office, by the President, by and with the advice and consent of the Senate, and by the new commission issued to him, was to hold his office "during the pleasure of the President of the United States, for the time being." The pleadings upon which the cause was tried in the Court below, were extremely informal and confused, but they resulted substantially in the following questions of law, upon which the Judge instructed the jury, and a bill of exceptions was taken.

1. Whether the liability of the sureties to the bond, was limited to the duties and obligations imposed upon the Collector by the act of the 22d of July, 1813, ch. 16, and other acts relating to the assessment and collection of direct taxes and internal duties, passed antecedent to the execution of the bond, thus excluding the liability for mo

1824.

U. States

V.

Kirkpatrick

1824.

U. States

Kirkpatrick.

neys collected under subsequent statutes? Upon this point, the Court below instructed the jury that the responsibility of the sureties did not extend to the obligations created by the subsequent statutes.

2. Whether the jury were at liberty to impute Jaches to the government, from the delay of the proper officers to call the Collector to account, at the periods prescribed by law, from the year 1814 to 1818? The Court left it to the jury to decide whether, under the circumstances of the case, the Government had not waived its resort to the sure

ties.

3. Whether the responsibility of the sureties extended beyond the duration of the first commission? Upon this point, the Court below charged the jury, that the responsibility of the sureties extended to the re-appointment of the Collector under the new commission, until his duties and obligations were varied by the statutes enacted subsequent to the date of the bond.

4. How the payments, which had been made by the Collector, were to be appropriated? The balance found due in each account, had been carried forward to the succeeding account, and the Court was of opinion, that the Government could not make the appropriation, at the time of the trial, so as to apply the payments to the extinguishment of debts due subsequent to the time when the sureties ceased to be liable.

Upon these instructions a verdict was found for the defendants, upon which a judgment was rendered in the Court below, and the cause was brought by writ of error to this Court.

1824.

V.

March 17th.

The Attorney-General, for the plaintiffs, mentioued the extreme laxity of the pleadings in the U. States Court below, not with a view of preventing a decision upon the merits, which was very much de- Kirkpatrick. sired by the Government, but in the hope of producing some reform. He argued, (1.) That the appointment of the Collector was permanent, neither limited in point of time, nor to the acts of Congress then in force, but extending to all laws on the subject of direct taxes and internal revenue, which might be passed during his continuance in office. The act of the 22d of July, 1813, ch. 544. [xvi.] makes a permanent partition of the whole territory of the United States into collection districts, preparatory to other distinct and separate laws, which were afterwards to follow. It looks to all future laws. There being, then, no existing law in force, all the laws to which the bond could refer were prospective. The case of the People v. Jansen," which had been referred to in the Court below, was distinguishable, in several particulars, from the present. (2.) The instruction given to the jury, authorizing them to impute laches to the Government, was erroneous. Even in the case of private individuals, mere delay in proceeding against the principal debtor will not discharge a surety. (3.) The charge of the Judge below was also erroneous, in authorizing the jury to apply the payments made by the Col

a 9 Johns. Rep. 332. 340;

b The Trent Navigation Company v. Harley, 10 East. Rep. 34. Nares v. Rowles, 14 East. Rep. 510.

U. States

V.

Kirkpatrick.

1824. lector to the balances due, under the acts in force when the bond was given. The rule is settled, that where debts are due on two different accounts, the debtor may make the application to either, at the time of payment. But, if he omit to do it, the creditor has a right to determine to which it shall be applied."

Mr, Alexander and Mr. Foster, contra, contended, (1.) that the bond entered into by the defendants in error, was no farther obligatory on them, than for the faithful performance of the official duties of Reed, during the continuance of the appointment recited in the condition. The first commission was to continue in force, by its own terms, only until the end of the next session of the Senate; and the new commission was a revocation of it. Being with the advice and consent of the Senate, it is by a different authority, and the President might have nominated a different person. By carrying forward the balance due by Reed, under the first commission, to his account, as Collector under the second commission, it was shown, that his personal responsibility was looked to, and that no resort was intended to be had against the sureties. It has been held, that a guarantee of a partnership debt is not liable, where the partnership debt is discharged, by carrying the proportions of each partner to his separate account, without notice to

a Peters v. Anderson, 1 Marsh. Rep. 238. Newmarch v. Clay, 13 East. Rep. 239.

U. Siates

V.

Kirkpatrick.

the guarantee. This nnist be upon the principle, 1324. that the plaintiff' had shown, by his own act, that he did not intend to resort to the surety, and that he looked to the debtors in a different capacity from that in which the guaranty was given. In Lord Arlington v. Merrick, the action was deot on bond, dated the 1st of May, 18 Car. II., conditioned that, whereas, on the 30th of April, 1667, the plaintiff had deputed T. Jenkins to execute said office, from the 24th of June next for six months following, if said T. J. shall, &c., for and during all the time he shall continue Deputy Post Master, well, truly, and faithfully do, execute, and perform all the duties, &c. The defendant pleaded performance generally; and a breach was assigned on the last day of September, 22d of the King; and defendant demurred. The Court held, that the condition should refer to the recital only, by which the defendant was bound only for six months, and not longer. This had been considered as a leading case ever since; and other analogous cases might be cited." (2.) The subse

a Cremer v. Higginson, 1 Mason's Rep. See also, 3 Wheat. Rep. 148. Note a. and the cases there collected. Commonwealth v. Fairfax, 4*Hen. and Mumf. 298., recognised by the Court to be law. Anderson v. Longden, 1 Wheat. Rep. 91.

b 3 Saund. 411.

c Id. 415. Sergt. Williams' Noté (5.)

d Wright v. Russell, 3 Wils. 530. S.C. 2 W. Bl. R. 934. African Company v. Mason, cited in Stubbs v. Clough, Str. 227. Barker v. Parker, 1 T. R. 287. Barclay v. Lucas, 1 T. R. 291. Note a. Metcalf v. Bruin, 12 East. Rep. 400. The Wardens of St. Saviour v. Bostwick, 5 Bos. & Pul. 175. Commonwealth v. Baynton, 4 Dall. 282. Armstrong v. the United States, 1 Peters' Rep. C: C. 46. Liverpool Waterworks Company. v. Atkinsou, 6 East Rep. 507.