in the registry of such court as a deposit, loan, or otherwise, is guilty of embezzlement, and shall be punished as prescribed in the preceding section."

The statutory provisions to which we have referred, taken in connection with § 828 of the Revised Statutes, giving commissions to clerks for receiving, keeping, and paying out money in pursuance of any statute or order of court, show the relation in which clerks of district and circuit courts have always stood to moneys paid into court in pending causes. They manifestly proceed on the ground that money paid into court, under its sanction, may be received by a clerk, his duty upon receiving it being forthwith to deposit the amount with the Treasurer, assistant treasurer, or designated depositary of the United States, in the name (687)and to the credit of the court. *As soon as he receives the money be becomes responsible for it under his bond, and that responsibility does not cease until he deposits it as required by law. If after receiving the money he appropriates it to his own use, or, which is the same thing, if he deposits it in bank to his individual credit, he becomes liable on his bond for the amount so misappropriated.

his duties or seasonably to record the de-
crees, judgments, and determinations of the
court. It must have been so understood
*when the courts of the United States were[688]
established and provision made for the ap-
pointment of clerks who should be entitled
to receive the moneys of suitors when paid
into court under its sanction or pursuant
to any statute.

A well-considered case upon this general subject is that of McDonald v. Atkins, 13 Neb. 568, 14 N. W. 532. That was an action on a clerk's bond to recover the amount received by him from a sheriff who had collected it on an execution. The point was made that the clerk was not authorized by statute to accept payment of a judgment, and so the court of original jurisdiction held in that case. The supreme court of the state said: "No one can doubt, we think, that this ruling was in direct conflict with the general understanding of the legal profession of this state as to the duty of court clerks in the receipt and disbursement of money paid upon judgments, from the first organization of our judicial system, through all its changes, down to the present time. Indeed, we doubt exceedingly that anyone, especially a practising lawyer, has ever supposed that upon the rendition of a money judgment, the defendant could not prevent a further accumulation of costs and interest, and have a satisfaction legally entered of record, by at once paying to the clerk of the court the amount which it calls for. If he could not-if clerks are really without authority to receive money on judgments in their custody, then to whom, in the absence of the plaintiff and his attorney, could payment be legally made!

While it is true that we have no statute which in express terms declares that the clerks of the several courts shall accept payment of judgments in their custody, it is very evident that the legislature contemplated and intended that they should do so.

3. But it is said that, the bond in suit having been given to the United States, it must be deemed an instrument for the sole benefit of the government, and therefore no suit can be maintained on it for the benefit of an individual suitor, although such suitor may have been damaged by the failure of the clerk to discharge his duty. This results, it is supposed, from the fact that there is no statute expressly authorizing such a suit. If this position be well taken, it would follow that the bonds required to be given by clerks of the Federal courts are not in any case for the protection of private suitors. We are of opinion that Congress never intended that any such condition of things should exist, but intended that the bond of a clerk should be for the protection And, even in the absence of such of all suitors, public and private, and to that provision, can it be doubted that a party end authorized his bond to be increased to against whom a money judgment is sought $40,000. It is impossible to suppose that, by action may, upon being summoned, pay when requiring a clerk to give bond to the the amount demanded 'into court,' and thereUnited States "faithfully to discharge the by prevent the making of any further costs! duties of his office, and seasonably to record But how is it to be effected? In the case the decrees, judgments, and determinations of inferior courts-those not of record, and of the court," Congress had in mind the in- unprovided with clerks-the payment can, terests of the United States alone, and pur- of course, only be made to the judge or magposely refrained from making any provision istrate in person; but in courts of record, whatever for the security of private suitors where all the steps taken in the progress of in the Federal courts. Such a conclusion the case, from the commencement to the sat-[689] would be inconsistent with the practice of a isfaction of final judgment, are recorded and century, and would greatly surprise the pro- preserved, and where a clerk for the perfession. As may well have been anticipated formance of this duty is specially provided, when those courts were first established, the it is otherwise. In these courts payments great mass of litigation in the district and of money are never made to the judge, but circuit courts of the United States has al- the uniform practice in this state has always been between individuals, and conse-ways been to make them to his clerk, to quently the words above quoted, it must be whose cutody and care the files, records, assumed, had reference to individual suitors and whatsoever else relates to cases in as well as to the United States. In our opinion, the bond of the clerk is for the benefit of every suitor injured by the failure of that officer faithfully to discharge

court, are confided. And this practice, so
universal, although not positively directed
by any act of the legislature, conflicts with
none, and, as we have shown, is recognized

by and in perfect harmony with several." a private person, unless with the consent of
These observations are strikingly applicable the United States expressed in an act of
in the present case.
Congress.

Two cases often cited in support of the contrary view are Com. v. Hatch, 5 Mass. 191, and Crocker v. Fales, 13 Mass. 260. These cases will be found, upon examination, to rest upon grounds not applicable here.

It is supposed that the case of Washington v. Young, 10 Wheat. 406, 409, 6 L. ed. 352, 353, is authority for this position. That was an action brought in the name of the corporation of Washington for the use of one McCue and others, to recover from a Com. v. Hatch was a suit upon a bond manager of a lottery scheme the prize given by an inspector of beef for the faith-drawn by the purchasers of a certain ticket. ful performance of his duties. The suit was The lottery was drawn in pursuance of an brought in the name of the commonwealth ordinance of the corporation, and the bond for the benefit of one alleged to have been of the manager, in the penalty of $10,000, injured by the unfaithfulness of the inspec- was conditioned "truly and impartially to tor in his office. It was held that the ac- execute the duty and authority vested in tion could not be sustained-the decision be- him by the ordinance." The suit was ing placed, in part, upon the ground that brought in the name of the corporation with. it appeared "by the statute directing the out its previous assent. Upon examination bond, and by the bond, that it was given for of the record in that case it will be found the sole use of the commonwealth." Sure that the lottery was drawn under an act of ly, it cannot be said that it appears by the Congress, approved May 4th, 1812, chap. statutes and by the bond in the present case 75, amending the charter of the city of that it was given for the sole use of the Washington, and which gave the corporation United States. of Washington power "to authorize the [691] drawing of lotteries for effecting any important [public] improvement in the city which the ordinary funds or revenue there of will not accomplish; provided, that the amount to be raised in each year shall not exceed the sum of ten thousand dollars; and provided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved of by him." 2 Stat. at L. 721, 726, § 6. Chief Justice Marshall, speaking for the court, said: "They [the proprietors of the ticket] had undoubtedly 'a right to apply to the corporation to direct the suit, and the corporation could not, consistently with their duty, have refused such application,' if the purpose of the bond was to secure the fortunate adventurers in the lottery, not to protect the corporation itself. But the propriety of bringing such suit was a subject on which the obligees had themselves a right to judge. If the proprietors of one prize ticket had an interest in this bond, the proprietors of every other prize ticket had the same interest; and it could not be in the power of the first bold adventurer who should seize and sue upon it, to appropriate it to his own use, and to force the obligees to appear in court as plaintiffs against their own will. No person who is not the proprietor of an obligation can have a legal right to put it in suit, unless such right be given by the legislature; and no person can be authorized to use the name of another, without his assent given in fact, or by legal intendment."

Crocker v. Fales was an action upon a bond of a clerk in the penalty of $1,000, the obligee being a county treasurer, and the action being in his name for the use of one claiming to be injured by his neglect to pay certain moneys that came to his hands. The court held that the action could not be maintained, assigning as reasons for that conclusion that there was "nothing in the act" under which the bond was taken show. ing "a design to protect individual sufferers against the negligence of the clerk to pay over moneys which may come Into his hands;" that the penalty-between fifty and three hundred pounds was discretionary with the court, "the largest of these sums being wholly inadequate if it was intended [690]*to cover all possible delinquencies of a clerk;" that the damages recovered by one plaintiff "might consume the whole penalty: and the public be left without any of the security which was intended for the preservation of the records;" and that, in addition, "the statute makes such an appropriation of the sum which may be recovered by the treasurer on a suit as is wholly inconsistent with the supposition that an individual has an interest in the bond." Of course, these things cannot be predicated of the statutory provisions relating to the bonds of clerks of Federal courts, and therefore the case cited is not in point here.

The suggestion that the amount of the bond was insufficient to protect both the United States and private suitors is not controlling; for, by the act of March 3d, 1863 (12 Stat. at L. 768, chap. 93), reproduced in 795 of the Revised Statutes, the court could fix the amount of the bond, and require a new one whenever it deemed proper and by the act of February 22d, 1875 (18 Stat. at L. 333, chap. 95), the Attorney General could require a bond for as much as $40,000.

That case undoubtedly is authority for the proposition that, generally speaking, an obligation taken under legislative sanction cannot, in the absence of a statute so providing, be put in suit in the name of the ob ligee, the proprietor of the obligation, without his consent. But it also sustains the 4. A further contention is that, even if proposition that consent may, under some the bond was for the protection of individ-circumstances, be assumed to have been giv ual litigants, it could not be put in suit byen; that is, may arise by legal intendment.

In the case just cited it was deemed plain bond to show that he has an interest in it, from the ordinance of the corporation that | before he could recover in a regular trial the bond was taken, primarily at least, for prosecuted to verdict.' The rationale of ofits protection, and not for the benefit of ficial bonds is well expressed by the court in ticket holders. The object for which the this case: "The laws which provide for the corporation was empowered to establish lot- execution of bonds similar to the one before teries was in its nature temporary and lo- us do not require them for the purpose of [692]cal, namely, to aid in making important protecting the rights of the state alone. public improvements. It was to secure the They are also designed to secure the faithaccomplishment of that object that the man-ful performance of official duties, in the disagers were required to execute bond. It charge of which individuals and corporations was not unreasonable to suppose that in tak- have a deep interest, and, therefore, they ing such a bond the corporation had in should have the privilege of suing [on] such mind to protect itself in making the public bonds for injuries sustained by them, improvements which it was authorized to through the negligence and malconduct of undertake. In the present case, courts of the officers." The same author: "Many the United States were established in order bonds of a strictly official character are exethat its jurisdiction might be invoked by all cuted by persons in places of public trust, entitled to do so, and the requirement that prescribed by statute, and made payable to the clerk should execute a bond for the the 'state,' 'people,' or 'commonwealth,' or faithful discharge of his duties and for the else to the governor, president, or other chief seasonable recording of the judgments, de- officer, which are designed not only to secrees, and determinations of the court-no cure public interests, but to redress wrongs distinction being made between public and to individuals. Actions on such bonds private suitors-was an assurance to all must, of course, be brought in the name of suitors that, within the limit of the penalty the obligee, whether the object of the suit of any bond taken from him by the govern- be to enforce the rights of the state or to ment, their rights would be protected protect private interests. In the latter case against any act or omission on his part re- it is usual to bring the suit as by the oblisulting to their injury. By the terms of the gee, 'at the relation' or 'for the use' of the statute a clerk's bond remained in the cus- real party in interest." [§ 475.] tody or subject to the order of the court. In our opinion, Congress intended that the required bond should protect private suitors as well as the United States, and therefore, no statute forbidding it, a private suitor may bring an action thereon for his benefit in the name of the obligee, the United States. Such must be held to be the legal intendment of existing statutory provisions. The United States, or rather the court which had custody of the bond, is to be regarded as a trustee for any party injured by a breach of its conditions.

Stress is laid upon the fact that in the case of a marshal of the United States the statute expressly gives a right of action upon his bond to any one injured by his neglect of duty,-the suit to be in the name of the party injured and for his sole use. Rev. Stat. § 784; 2 Stat. at L. 372, 374, chap. 21. A similar provision is made in the case of consular officers who are required to give bond for the faithful performance of their duties, such suit to be in the name of the United States for the use of the person injured. Rev. Stat. § 1735. These provisions in relation to marshals and consular officers undoubtedly furnish some ground for the contention that Congress, having made no such express provision in the case of the bonds of *clerks, did not intend that private[694] suits should be maintained upon their bonds. We are of opinion that this argument, although not without force, ought not to prevail against the legal intendment of the statutory provisions relating to clerks, who hold a peculiar relation to the courts appointing them, as well as to the public.

Murfree in his Treatise on Official Bonds says: " 323. It is usually provided in statutes authorizing official bonds to be required of state, county, or municipal officers that suits may be brought upon them in the name of the official obligee 'upon the relation' or 'to the use' of the party injured by the breach of the bond or interested in its enforcement. Whenever, however, this express provision is omitted in the statute itself the deficiency is supplied by the construction given to such statutes by the courts whenever a proper case for such a As the clerk had the right to receive the ruling is presented. In a Maryland case money in question; as he failed, to the in(1858), State use of Baltimore v. Norwood, jury of the suitor from whom he received it, 12 Md. 177, 194, the court held that it was with the sanction of the court in a pending not necessary for a plaintiff before institut-cause, to deposit it as required by law, and ing a suit upon an official bond payable to the state, to obtain the state's permission to [693]do so; and this *although there was in the statute which prescribed the bond no specific provision for making the bond payable to the state, or for giving the party interested the right to sue upon it. The court adds, however, that 'there is no doubt that it is incumbent on the party suing on the 762

appropriated it to his own use; and as his
bond was for the protection of private suit-
ors as well as for the government, there is
no sound reason why the plaintiff could not
enforce his rights by a suit in the name of
the United States for his benefit.
Perceiving no error in the record the
judgment is affirmed.

184 U. S.

MEMORANDA

CASES DISPOSED OF WITHOUT OPINIONS.