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PROMOTIONS AFTER FOURTEEN YEARS' SERVICE.
3 Mar., 1863, c.
591. When any lieutenant of the Corps of Engineers or years refvires Ordnance Corps or Signal Corps has served fourteen years 98, s. 9, v. 10, p. continuous service as lieutenant, he shall be promoted to the rank of captain, on passing the examination provided 7 **. 3, 1, v.12, p. by the preceding section, but such promotion shall not 6927. F.;1977.c. authorize an appointment to fill any vacancy, when such, t. 1. 1820, s. 7, appointment would increase the whole number of officers in the corps beyond the number fixed by law; nor shall any officer be promoted before officers of the same grade who rank him in his corps. Sec. 7, act of October 1, 1890 (26 Stut. L., 65.3).
592. Bonds, by whom given.
v. 12, p. 600; Feb.
592. All officers of the Quartermaster's, Subsistence, and Bonds of dis. Pay Departments, the chief medical purveyor and assist- by whom given. ant medical purveyors, and all store-keepers shall, before 69,6, v. 3, p. 298 entering upon the duties of their respective offices, give 20.3 , p. 27 good and sufficient bonds to the United States, in such *: 2, , 11, D: 203 sums as the Secretary of War may direct, faithfully to 15.2 p.
512; July 28, 1866, account for all public moneys and property which they may B: My 15; receive. The President may, at any time, increase the 1820, 6, 102,5, 3, 4 sums so prescribed.' But the Quartermaster-General shall 1862, c. 201, s. 16 not be liable for any money or property that may come into 7: 1877, v. 19, p. the hands of the subordinate officers of his department.?
Sec. 1191, R.S. For statutory requirements respecting bonds and sureties, in addition to those cited in this chapter, see the chapters entitled THE TREASURY DEPARTMENT, THE COURT OF CLAIMS, THE QUARTERMASTER'S DEPARTMENT, THE SUBSISTENCE DEPARTMENT, THE Pay DEPARTMENT, THE MEDICAL DEPARTMENT, and ConTRACTS AND PurCHASES. Officers of the Army and Navy are excepted from the provisions of section 3614, Revised Statutes, which require all special agents employed by the heads of the several Executive Departments in the disbursement of the public moneys to give bonds in such form and with such security as such heads of Departments may approve. This section does not apply to all commissioned officers of the Army who may be required to act as disbursing officers, but to such only as are regularly appointed disbursing officers and who are required, as such, to give bonds.
Ex parte Randolph 2 Brocken brough, 447. See also U. S. v. Kirkpatrick, 9 Wh., 720; V. S. Van Zandt, 11 Wh., 184; Dox v. Postmaster-General, 1 Pet., 325; U. S. v. Linn, 15 Pet., 290.
2 Á bond to the United States, conditioned that a property and disbursing officer of the War Department shall faithfully discharge his duties and faithfully account for public money and property committed to his charge, takes effect on the day
Increase of bonds.
593. The President is authorized, if in his opinion the A116, 6, 1816,C: interest of the United States requires the same, to regulate July 3, 1852, 0.51, and increase the sums for which bonds are, or may be, s. 7, v. 10, p. 12;
when it is accepted by the Government, and is to be regarded as of that date. Moses 1: V. S., 166 U. S., 571. A surety on the bond of one in official relation with the Government is himself in contract relation with it, and, as he is liable to be sued by it, he has the right to sue it whenever a balance is due from it to which, on the principle of subrogation, he will ultimately be entitled. Shwarz v. U. S., 35 Ct. Cls., 303; Behan 1. U. S., 18 ibid., 187, 110 U.S., 338; Hitchcock v. U.S., 27 ('t. Cls., 185, 164 U. S., 227; Pope v. U. S., 14 ibid., 446. No jurisdiction is conferred upon the Comptroller of the Treasury to render a decision, at the request of the head of a Department, upon the question whether the filing of a new bond relieves the ureties on a prior bond of the same official from liability after the date of the new bond, such a question not involving a payment to be made under the head of the Department. Section 8, act of July 31, 1894 (28 Stat. L., 20).
The giving of bond is not necessary to entitle persons appointed to office in the Army requiring the disbursement of money, to begin to receive pay; they are entitled, like other officers, to be paid upon the acceptance of their appointments, according to par. 1448, Army Regulations, whether they have at that time furnished their bonds or not. XVI Op. Att. Gen., 38. The expense incurred by an officer in furnishing the bond required by law of all disbursing officers of the Government, is not a proper charge against the Government, even though the officer serves without compensation. Il Compt. Dec., 262; U. S. v. Van Duzee 140 U. S., 171.
Section 1191, Revised Statutes, requires bonds only of certain disbursing officers specifically named. In the absence of any express provision of law, prescribing that bonds shall be furnished by other disbursing officers, the President, in his discretion, and for the better security of the public funds, may, through the head of the proper department, require such bonds to be furnished. (a) Dig. Opin. J. A. G., par. 544.
A bond can not be extended beyond the period of the original obligation so as to continue to bind the sureties, without their consent. Nor can an expired bond be revived so as to bind the sureties without their consent. The Secretary of War (or President) has no power to release the sureties in an official bond from their liability to the United States. (b). A neglect by the Government to institute suit on a bond does not discharge the sureties; laches not being in such cases imputable to the United States.(r) Ibid., par. 549.
One of two (or several) sureties can not withdraw independently from his obligation; and if allowed to do so by the obligee, the other surety (or sureties) will be released as to him. But the Secretary of War is not empowered to release the sureties on a disbursing officer's bond. Ibid., par. 554.
The law of the place at which a contract is made governs as to its interpretation, except where the contract is to be performed elsewhere, in which case the law that governs in this respect is the law of the place of performance. An official bond, made to the United States, wherever actually signed, is—as has been held by the Supreme ('ourt (a)-a contract made and to be performed at Washington; and by the laws of the District of Columbia the contract of a married woman as surety is not binding. Moreover, it is not the practice of the War Department to accept a feme covert as a surety, and before a female surety will be accepted she is required to make oath that she is single in addition to justifying as required of other sureties. Ibid.,
If after the execution of a bond a material change be made in the name or description of the principal, by erasure, interlineation, or otherwise, without the assent of the sureties or a surety, even though such change be made to correct a mistake, the surety or sureties not consenting will be released. In a case of such an alteration, recommended that a new bond be required. Ibid., par. 555. See, also, ibid., paragraphs 554–560.
While departmental regulations duly promulgated have the force of law, in a limited sense, they can not enlarge or restrict the liability of an officer on his bond. Meads v. U. S., 81 Fed. Rep., 684.
a Bonds may be required by the Government from officers appointed to places of trust, though there is no statutory authority to take such bonds, and they will be valid as common-law obligations. In a bond with sureties, given by an othcer of the Governinent, it is sufficient to make the bond valid as a common-law obligation that it is voluntarily given and that the office and the duties assigned to the offieer and covered by the bond are duly authorized by law. U.S. 1. Tingey, 5 Pet., 115; U. S. v. Bradley, 10 id., 313, 360; U. S. v. Rogers, 28 Fed. Rep., 607; VI Opins. At. Gen., 24.
VII Opins, At. Gen., 62.
111, s. 2, v. 11, p.
required by law, of all district attorneys, collectors of Mar. 3, 1857, c. customs, naval officers, and surveyors of customs, navy 25,95, V: 12.1. agents, receivers and registers of public lands, paymasters 2 Mar. 3, 1963, in the Army, Commissary-General, and by all other officers 770: July 4, 1861
, employed in the disbursement of the public moneys, under 33Fb. 18. 1809 the direction of the War or Navy Departments.
, s. 4, . 15, . 271. Sec. 3639, R. S.
SECURITY COMPANIES AS SURETIES.
sureAug. 13, 1894, v.
594. Whenever any recognizance, stipulation, bond, or
panies as undertaking conditioned for the faithful performance of licu any duty, or for doing or refraining from doing anything 28, p. 279. in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the United States required or permitted to be given with one surety or with two or more sureties, the execution of the same or the guaranteeing of the performance of the condition thereof shall be sufficient when executed or guaranteed solely by a corporation incorporated under the laws of the United States or of any State having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial pro. ceedings: Provided, That such recognizance, stipulation, bond, or undertaking be approved by the head of department, court, judge, officer, board, or body executive, legis. lative, or judicial required to approve or accept the same. But no officer or person having the approval of any bond shall exact that it shall be furnished by a guarantee company or by any particular guarantee company. Act of August 13, 1894 (28 Stat. L., 279).
The Government has the power, through the head of a department, to take a bond from a disbursing officer, though there is no law or general regulation requiring it; and a bond is none the less a voluntary bond because demanded by the superior officer, if not illegally extorted. Moses 1. U. S., 166 U. S., 571.
2 Execution, sealing, etc.—The bond should of course be executed by all the parties-obligor and sureties. It has been held by the U. S. Supreme Court that an official bond, though without seals, may be good as a contract at common law. To avoid, however, any questions that might arise from the absence of a seal, cuvised (February, 1868) that formal seals “of wax or other adhesive substance," be in all cases required to be affixed by the subscribing parties. Dig. Opin., J. A. G., par. 534.
A bond given by a disbursing officer of the Army (or any hond required by the War Department) wherein the Secretary of War is made the obligee, is in incorrect form. The obligee should be–The United States of America. Ibid., par. 542.
A bond should of course be dated, but the omission of the date will not affect the validity of the instrument, as the true date of execution can be proved aliunde, in the event of a suit on the bond. Ibid., par. 543.
The seal of both obligor and sureties must be a formal one, of wafer, wax, or other adhesive substance. A mere scroll maile with the pen is not accepted as a substitute for a seal in the War Department. A corporation obligor should aflix its corporate seal if it has one. But the fact that a corporation has not adopted a corporate seal will not affect the validity of its execution of a bond in which it is principal or surety, provided some form of seal be added to its signature. A corpar. 551.
Agents to be appointed in ju
595. No such company shall do business under the prodicial district visions of this act beyond the limits of the State or Territory where surety is undertaken.
under whose laws it was incorporated and in which its Sec. 2, ibid.
principal office is located nor beyond the limits of the District of Columbia, when such company was incorporated under its laws or the laws of the United States and its
principal office is located in said District, until it shall, by poration may make and use any seal, in its discretion, in the same manner as a private individual. Ibid., par.
544. Justification of sureties.—Of two or more sureties to an official bond, each, according to the regulation, should justify separately; a justification in joint form is irregular and improper. An affidavit of justification should properly be expressed in the first person; not in the third. Ibid., par. 540.
The affidavit of justification of a surety should be dated, so that it may appear when he was worth the amount specified. The names of the sureties in the justifications should be identical with those inserted in the body of the bond. Their names should not be omitted to be recited in the bond with the name of the principal. Ibid.,
The affidavit of justification should be taken before some officer, like a notary public, having authority to administer oaths for general purposes and whose official character is authenticated by his seal. (a) But as the justification is no part of the bond, and the administration of the oath by an official not competent to administer it does not affect the validity of the bond, the irregularity of the justification, where there is nothing to show that the oath was not taken in good faith by the surety, may be waived by the Secretary of War, and in practice it is now (May, 1893) waived, and the bond accepted if otherwise valid. And in case where the seal of the notary was omitted, recommended that the instrument be returned to have the seal impressed upon the certificate, for the purpose of such authentication, which would be wanting without it. Ibid., par. 553.
Sureties. The obligation of each surety must be for the whole amount of the penalty; the regulation requiring that the sureties “shall be jointly and severally bound for the whole amount of the bond.” So, where the penalty in a quartermaster's joint and several official bond was $10,000, and the sureties, in executing the same, assumed to be bound only in the sum of $5,000 each, the words " for five thousand dollars” being written under each signature-held that the instrument was con tradictory, did not conform to the regulations, and should not be accepted. And similarly held in a case of a bond with a penalty of $40,000, where the sureties wrote opposite their signatures, respectively, "for $35,000,” “for $5,000.” Sureties can not qualify their obligation by thus limiting their personal liabilities. Ibid., par. 535.
There is no statute or regulation prohibiting an officer of the Army from acting as a surety on the official bond of another officer. Such a relation, however, is not one to be favored. Ibid., par. 536.
Par. 572 of the Regulations contemp'ates plural sureties with bonds of disbursing officers. A justification of a surety, however, is no part of the bond, and as the object of the justification is to satisfy the Secretary of War that the surety is good for double the penalty, the Secretary, where amply satisfied that one certain person offered or executing as surety is pecuniarily sufficient for such amount, would be authorized to accept him (on his properly justifying) as sole surety, and to waive any further surety or sureties with the instrument. A subordinate of course can have no such authority. In view, however, of the terms of the regulation and of the practice under it, this authority would of course most rarely be exercised in cases of disbursing officers' bonds. Ibid., par. 537.
A captain of the commissary department having given bond in a penalty of $12,000, one of his sureties deceased. Par. 563, Army Regulations, 1895, prescribes that “the sureties to bonds given by disbursing officers shall be bound jointly and severally.” The officer offered a new bond with one surety in a penalty of $6,000. Held that such security would not be legally sufficient, but that a new joint and several bond in the penalty of $12,000 would be required. Ibid., par. 552.
For opinions respecting security companies as sureties see Dig. Opin., J. A. G., pars. 596-602.
a Under section 19 of act of Congress of May 28, 1896 (29 Stat. L., 184), United States commissioners and all clerks of United States courts are authorized to administer oaths generally.. 3 Comp. Dec., 65.
a written power of attorney, appoint some person residing within the jurisdiction of the court for the judicial district wherein such suretyship is to be undertaken, who shall be a citizen of the State, Territory, or District of Columbia, wherein such court is held, as its agent, upon whom may be served all lawful process against such company, and who shall be authorized to enter an appearance in its behalf. A copy of such power of attorney, duly certified and authenticated, shall be filed with the clerk of the district court of the United States for such district at each place where a term of such court is or may be held, which copy, or a certified copy thereof, shall be legal evidence in all controversies arising under this act. If any such agent shall be removed, resign, or die, become insane, or otherwise incapable of acting, it shall be the duty of such company to appoint another agent in his place, as hereinbefore prescribed, and until such appointment shall have been made, or during the absence of any agent of such company from such district, service of process may be upon the clerk of the court wherein such suit is brought, with like effect as upon an agent appointed by the company. The officer executing such process upon such clerk shall immediately transmit a copy thereof by mail to the company, and state such fact in his return. A judgment, decree, or order of a court entered or made after service of process as aforesaid shall be as valid and binding on such company as if served with process in said district. Sec. 2, ibid.
596. Every company before transacting any business copy of char: under this act shall deposit with the Attorney-General of with Attorneythe United States a copy of charter or articles of incor- Sec. 3, ibid. poration, and a statement signed and sworn to by its president and secretary showing its assets and liabilities. If the said Attorney-General shall be satisfied that such Attorney-Gencompany has authority under its charter to do the busi-thority to act. ness provided for in this act, and that it has a paid-up capital of not less than two hundred and fifty thousand dollars, in cash or its equivalent, and is able to keep and perform its contracts, he shall grant authority in writing to such company to do business under this act. Sec. 3, ibid.
597. Every such company shall, in the months of Janu- Quarterly ary, April, July, and October of each year, file with the visor poners of
-Gensaid Attorney-General a statement, signed and sworn to eral. by its president and secretary, showing its assets and liabilities, as is required by section three of this act. And the said Attorney-General shall have the power, and it
Sec. 3, ibid.
Sec. 4, ibid.