of the duties upon imports and tonnage shall,
within three months after he enters upon the
duties of his office, give bond, with one or more
sureties, to be approved by the Comptroller of
the Treasury of the United States, and payable
to the United States, with condition for the
true and faithful performance of the duties of
his office, according to law. The condition of the
bond is, that whereas the President of the Unit-
ed States hath, pursuant to law, appointed the
said
to the office of
in the
Now, therefore, if the said
has truly and faithfully executed
and discharged, and shall continue truly and
faithfully to execute and discharge all the
duties of said office, according to law, then the
above obligation is to be void and of none ef
fect; otherwise it shall abide, and remain in
full force and virtue.

State of

done. It is not necessary that it should be handed to the Comptroller. It may be handed to an agent appointed by the Comptroller to receive it, or it may be put into the possession of any person to deliver it, or it may be transmitted by mail. If done in any one of these ways, it is a delivery from the moment that the Collector and his sureties part with it. It is from that moment in the course of transmission, with the intention that the law may act upon it through the Comptroller's agency, and his subsequent approval is an acceptance with relation to the time beginning the transmission. The statute does not require the approval to be in writing. It may be so, and may be done verbally; or it may not be done in either way. Receiving the bond and retaining it for a considerable time without objection, will be sufficient evidence of acceptance to complete the delivery, In this state of the case, a recovery upon this especially when the exception is taken by the bond is resisted by an objection that it never party who had done all he could to complete it. had a legal existence as to Macon, the intestate (Postmaster General v. Norvell, 1 Gilpin, 106-121.) of the appellant, because he died before it was And we add, that the retention of such a bond by approved by the Comptroller. It is not denied the Comptroller without objection, for a longer -or, if it be, the evidence makes it altogether time than the statute requires it to be given, probable that the bond had been delivered be- would be presumptive evidence of its approval fore Macon died. We cannot admit that the and acceptance. This presumption of acceptdate of the approval can be taken absolutely as ance has been ruled by this court, in the case. the time when the bond was accepted, withour of The United States Bank v. Dandridge et al., any relation to the time when it was delivered. 12 Wheat., 64. In that case, an objection A bond may not be a complete contract until was taken in the Circuit Court to the admissi it has been accepted by the obligee; but if it be bility of evidence to show a presumptive acdelivered to him to be accepted if he should ceptance of a cashier's bond, because the char choose to do so, that is not a conditional deliv-ter of the bank required a bond to be given satery, which will postpone the obligor's under-isfactory to the directors. The Circuit Court taking to the time of its acceptance, but an admission that the bond is then binding upon him, and will be so from that time, if it shall be accepted. When accepted, it is not only binding from that time forward, but it becomes so upon both from the time of the delivery. That is the offer which the obligor makes, when he hands the bond to the obligee, and in that sense the obligee received it. Such is just the case before us. The Act requires the Collector to give a bond, with sureties to be approved by the Comptroller;" it must be done in three months after he has entered upon the duties of his office; it must be retrospective to that time, and be for the future also. The Comptroller may accept the sureties or reject them. may call at any future time for other sureties, if circumstances shall occur, or information shall be received, which make it necessary that the United States should have a more responsi155*] ble security. *Or he may call, under the direction of the Secretary of the Treasury, for a new bond. He may decide upon the sufficiency of the sureties before they have made themselves so, or after they have signed the Collector's bond. The first course is not the usual practice. The bond is commonly sent to the Collector with such sureties as he can get. The Comptroller receives it under the law, to be afterwards approved, upon such information as he has or may procure, concerning the re sponsibility of the sureties. The time is not limited for the use of his discretion for that purpose. He knows, and the Collector knows, that the bond ought to be given in three months after the Collector has begun to discharge the duties of his office. It is his duty to give the bond. It is the Comptroller's to see that it is

sustained the objection, and ruled that the approval must be in writing to bind the cashier's sureties. This court ruled otherwise. Presumptive evidence, then, being admissible to prove the acceptance of a bond-such as its being in the possession of the obligee-having been retained without objection, and the obligor continuing to act under it, without having called for a more formal acceptance, it follows that a written *acceptance, dated after [*156 a delivery, as was done in this case, is not to be taken as the time from which the completeness of the contract is to be computed; but that such an acceptance has a relation to the time of delivery, making that time the beHeginning of its obligation upon the parties to the bond. We remark, also, that there is no rule which can be applied to determine what constitutes the approval of official bonds. Every case must depend upon the laws directing such an approval. The purpose for which such a bond is required must be looked to. The character of the office and its duties must be examined. The time within which such a bond must be given and approved, and whether it is to be retrospective or for the future only, must be considered before it can be determined how and when the approval must be made. differences suggested may be seen by comparing the terms of the Statute of 1825, requiring bonds to be given by postmasters directly to the Postmaster General, and not to the United States, with the phraseology of the section of the Act directing bonds to be taken from the collectors to the United States.

The

The case of Bruce and others v. The State of Maryland, for the use of Love, in 11 Gill & Johnson, 382, which was supposed to have a bearing

upon the case, will illustrate fully the differ- out some addition having been made to the colences of which we have spoken. lector's duties. They are suggested from experiThe 42d article of the Constitution of Mary-ence. The Collector, too, has always been a land, requires bonds from the sheriff of that State, with sureties, before they can be sworn in to act as such. The Act of Maryland, car rying that article into operation (2d vol. Laws of Maryland, November, 1794), fixes the time within which sheriffs shall give bonds, and the manner of taking them is prescribed. It must be done in a county court, or before the Chief Justice, or two associate justices, &c., but by whomsoever approved, the Act directs that the official doing so, shall immediately transmit it to the county court to be recorded. The case came before the Court of Appeals, from a county court, which had decided that the bond of the sheriff operated from its date, that bond having been given without the approval in the manner prescribed. The Court of Appeals overruled the court below, saying that the bond had been irregularly taken, and that a sheriff's bond was only obligatory from the time of its approval. Under that statute, the question, when a sheriff's bond became operative, could not properly occur, it having made the delivery and approval of the bond simultaneous, that there might be a compliance with the Constitution, which declared that no sheriff should act until he had given bond. The Act which we have been considering, does not require the Comptroller's approval to be in writing. A Collector may be permitted to discharge the du157*] ties of his office, for three months. be fore he gives a bond, if the Secretary of the Treasury shall think it safe to be done. But if otherwise, he may require a bond before the Collector enters upon the duties of the office. The statute means that the three months allowed for a bond to be given, is an indulgence to the Collector, and not a rule binding upon the government, when its proper functionary shall determine that a bond shall be given earlier. We think, too, that the approval by the comptroller is directory, and not a condition precedent to give validity to the bond. The doctrine that deeds and bonds take effect by relation to the time they are delivered, is well understood. The cases cited by the Attorney General, in support of it, are sufficient for the occasion. We need not add to them, It applies to this case. Macon was bound as the surety of Crane, by the delivery of the bond before his death. The evidence in support of such a delivery, was fairly put to the jury.

disbursing officer for the payment of the expenses of his office, and may pay them out ofany money in hand, whether received from duties or from remittarces to him for that purpose, where the expenses are not unofficial, have been sanctioned by law, and have been incurred by the direction of the Secretary of the Treasury. For such payments, he may credit himself in his general account against the sums which may have been received for duties. He may retain his own salary, or fees and commissions; pay the salaries of inspectors and other officers attached to the office; make disbursements for the revenue boats, lighthouse buoys, &c., and apply money collected for duties, to all expenses lawfully incurred by himself or by his predecessors. For such as may have been incurred by his predecessor, he may receive [*158 from him any money in his hands, when he is going out of office, belonging to the United States, and which have been retained by him for the payment of such expenses.

We have compared the charge of the judge, with the instructions which were asked by the counsel of the defendant, upon the point we have been considering, and we think that it covers all of them correctly.

Another objection against a recovery upon this bond remains to be disposed of.

It is said that Crane, the Collector, received money belonging to the United States, out of the line of his duty, which has been improperly charged to make up the amount of the defal cation, which his sureties are now called upon to pay.

The duties of collectors have been much multiplied by other acts, since the Act of 1799 was passed. Scarcely an Act, and no general Act has been passed since, concerning the collection of duties upon imports and tonnage, with

When so turned over to a successor, he receives it officially, to be applied by him to the purpose for which it had been retained. Himself and his sureties are as much responsible for the faithful application of it as they are for his fidelity to his trust, for duties received by himself, or for other sums which may have been remitted to him by the order of the government. It has often been the case, and must be so again, as it now is, that the convenience of the government and the interest of its citizens, require collection districts to be established, which do not, and are not expected at first to pay expenses. Remittances, then, must be made for such purposes. They are made to the Collector, because it is under his personal supervision that the work is done, or the goods are furnished for the government, at the point of his office where the law requires him to reside. What we have said, covers all of the remittances which were made to Crane, by Breedlove, the Collector of Mississippi: and also the payment of $1,279.92 received by him from Willis, his predecessor, when he was going out of office, and when Crane was coming in. It appears, from the accounts, that he re ceived it as Collector. It cannot be denied that there was then a debt due by the government, on account of the expenses of the office, to which that sum ought to have been applied. Had it been so, he would have been credited with the sum in his next quarterly settlement. And if it was not so applied, it cannot be said that there was fidelity to his official trust in witholding it and applying other money of the government subsequently collected or received, to the payment of its antecedent debt. In this instance, there is less reason for not exempting the securities of Crane from responsibility for the sum received by the collector from his predecessor, because the evidence in the case shows it was afterwards sanctioned by the govern ment, and that it might have been applied by the collector to the liquidation of an official debt, as far as it would go, due by this government to himself. What has been said, covers every instruction which the court below was asked to give upon this point. We do not

V.

think that the judge erred in his general charge *ELIJAH PHELPS, Plaintiff in Error,[*160 upon them to the jury, or that in making the charge which he did, that there is any error of which the defendant can complain.

We affirm the judgment below, and direct a mandate to issue accordingly.

Mr. Justice Campbell:

I dissent from the judgment of the court in this case.

159*] *The certificate of the Comptroller of the Treasury, of his approval of a bond which it is made his duty to accept on behalf of the government, is the best evidence of the time of its delivery, as a valid and operative obligation. If another date is asserted by the government, the burden of sustaining it by clear proof, devolves upon it.

The instruction to the jury by the District Judge, "that the time of the approval of the bond, at the Treasury Department, is not to be taken as the time of delivery," was, in my opinion, too general, and is erroneous.

The District Judge further instructed the jury, that although the bond "may not have come to the hands of the officers of the government" till after the death of one of the obligors, yet, "if they had parted with it for the purpose of sending it, or having it sent to Washington City, before that time, that would charge the legal representative of the person who had died.

The delivery of a bond is only complete when it has been accepted by the obligee, or a third person, "for, and in his behalf, and to his use.'

The terms I have quoted from the Touchstone, imply a cession of the title to the paper in the act of delivery.

The third person, who thus represents the obligee, is not subject to the mandate of the obligor, nor amenable to his control.

JACOB MAYER.1

Exceptions to instructions to jury-must appear in bill as made while jury at the bar.

In order to make a bill of exceptions valid, it must appear by the transcript not only that the instructions were given or refused at the trial, but also that the party who complains of them, excepted to them while the jury were at the bar. form and signed before the jury retire; but it must The bill of exceptions need not be drawn out in be taken in open court, and must appear by the certificate of the judge who authenticates it, to have been so taken.

Hence, when the verdict was rendered on the 13th December, and on the next day the plaintiff came into court and filed his exception, it is not properly appearing in the other proceedings, the judgment before this court. And no error being assigned or of the Circuit Court must be affirmed, with costs.

THIS

HIS case was brought up by writ of error from the Circuit Court of the United States for the District of Indiana.

It is not necessary to state either the facts or arguments of the case, inasmuch as it went off upon a point of practice.

It was argued by Mr. Ewing for the plaintiff in error, and Mr. Jernegan for the defendant in error.

Mr. Jernegan thus noticed the point upon which the case went off:

A preliminary objection arises. It appears from the record that the verdict was rendered on the 13th of December, and the bill of exceptions filed on the 14th. No exceptions were taken on the trial. It is therefore too late now to object to the instructions of the court, or its refusal to give the instructions required. (11 Pet., 185; 6 Blackford, 417; Cully v. Doe, 11 Adolph. & Ellis, 1008, note.)

Mr. Chief Justice Taney delivered the opinion of the court:

The instructions of the District Judge would This action was brought by the plaintiff in be satisfied by any surrender of the custody of error against the defendant in the Circuit Court the paper, if for the purpose of having it sent of the United States for the District of Indiana, to Washington City; whether it be to the agent for the infringment of the plaintiff's rights unor servant of the obligors, who would be sub- der a patent granted to him for a new and useject to their orders, or by its inclosure in a ful improvement in the application of hydraulic letter, the delivery of which might be counter-power. The case was submitted to a jury unmanded; in other words, by acts which did not amount to a surrender of the property or legal right to control the paper. This, in my opinion, was erroneous. With respect for the opinion of this court, I enter, therefore, my dissent to the judgment which affirms these instructions.

ORDER.

This cause came to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of Florida, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with interest, until paid, at the same rate per annum that similar judgments bear in the courts of the State of Florida.

Cited 19 How., 76; 7 Otto, 592; 2 Woods, 98.

der certain directions from the court, and the verdict and judgment were for the defendant.

This writ of error is brought for the purpose of revising this judgment-and the case has been fully argued upon the charge given by the Circuit Court, and also upon its refusal to give sundry directions to the jury which were requested by the plaintiff.

*But, although it appears by the cer- [*161 tificate of the judge, sent up as part of the record, that these instructions were given and refused at the trial, yet it also appears that no exception was taken to them while the jury remained at the bar. The verdict was rendered

1. Mr. Justice CURTIS did not sit in this cause, having been of counsel for the patentee.

sary in order to review in appellate court. General exception or objection, when not sufficient. See note to Moore v. B'k of Metropolis, 13 Pet., 302.

NOTE. What particularity in exceptions is neces

Exception, when must be taken to be available on review.

Exceptions to the rulings or instructions of the

on the 13th of December, and the next day the plaintiff came into court and filed his exception. 418; 3 Otto, 555; 2 Cliff., 583: 11 Bank. Reg., 232.

There is nothing in the certificate from which it can be inferred that this exception was reserved pending the trial and before the jury retired.

The defendant in error now objects that this exception was too late, and is not therefore be- ELI K. PRICE, Executor of JOSEPH ARCHER, fore this court, upon the writ of error. think this objection cannot be overcome.

Partnership settlement-money retained by one to cover liability as surety for partnership-the other cannot recover back one half although surety's estate was afterwards exonerated from liability-Statute of Limitations applies to stated accounts between partners.

In the settlement of complicated partnership accharged with one half of certain custom house counts by means of an arbitrator, Bispham was bonds, which Archer, the other partner, was liable to pay, and which obligations had been incurred on partnership account. It

accounts by Mr. Foster, giving rise to this suit, to defeat the manifest intent and object of the is careful to provide for any such contingency parties, where it is clearly discernible, on the as that which has occured. The amount to be face of the instrument, and the ignorance, or paid by Mr. Archer to Mr. Bispham, is declared blunder, or mistake of the parties has preventto be in liquidation and full settlement be-ed them from expressing it in the appropriate tween them, of all matters, claims, and de- language. (Id., sec. 168.) mands, relating to or growing out of the transactions of their late firm,so far as they are now known, ascertained, or believed to exist."