Co. v. McOarthy, 96 U. S. 267, Mr. Justice SWAYNE, in speaking of an attempt of the railway company on the hearing in the supreme court to excuse itself for the non-performance of a contract to carry certain cattle on the ground that the act would have been a violation of the Sunday law of West Virginia, when it appeared that on the trial in the court below it had relied on the fact that it was impossible to forward the cattle on Sunday for the want of cars, said:
"This point was an after-thought, suggested by the pressure and exigencies of the case. Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has beKun, change his ground, and put his conduct upon another and different consideration. He is not permitted thus to mend his hold. He is estopped from so doing by a settled principle of law."
On the whole, I am of the opinion that the demurrer to this reply is not well taken, and should be overruled; and it is so ordered.
DUNDEE MORTGAGE & TRUST INVESTMENT Co. Cases. Nos. 1,066, 1,069, 1,197.)
(OVr'cuit Oourt, D. Oregon. July 12,1886.)
DEADY, J. These three cases were argued and submitted with the foregoing one. In No. 1,066 the plaintiff claims $5,651.03, with inother certificates of title terest from January], 1882, for making for said trust company. In 1,06lJ he claims $5,890, with interest from the same date, for making 297 certificates of title for the defendant. In 1,197 he claims $8,839, with interest from January 30, 1880, for services in paying out and delivering for said trust company $262,866, on 322 loans made by it before that time. In each of these cases the defendant pleads the judgment in the former action between the parties as a bar, to which the plaintiff makes the same replies. The questions arising on the motion to strike out portions of the replication, and the demurrers to the replies therein, are the same as in 1,056, and are disposed of accordingly for the reasons therein given.
FEDERAL REPORTER. UNITED STATES
MORGAN and others.
(District Oourt, 8. D. New York. June, 1886.)
OFFICIAL BOND-SURETIES-DISBURSING OFFICERS-SPECIFIC APPROPRIATIONS -UNA.UTHORIZED PAYMENTS-MINGLING ACCOUNTS-DEBITS CANCELED.
Disbursing officers of the treasury are not authorized to draw, nor the treasurer to pay, from the specific appropriations, any other sums than those authorized by law on account of the appropriations respectively.
M. was disbursing officer, as chief of the bureau of accounts, in the department of state. As such, he gave a bond, with the defendants as sureties, for the faithful discharge of his duties. lI'loneys for specific purposes, appropriated by congress. were placed to his credit by the treasurer, during several years. M., during the same time, received considerable moneys monthly for Issuing passports, which was not a part of his official duty as disbursing officer, and for which the sureties were not liable. M. was in the habit of using current receipts from passport moneys to pay current claims upon his treasury account, and at the end of the month he drew upon his treasury account in order to pay to the treasury the amounts due to the government for passport moneys. Upon M,'s death, in January, 1884, his treasury account was found about $17,000 short, and during the period covered by these accounts he had drawn from it about $29,000 for paying into the treasury his passport moneys. Each draft, and a letter accompanying it, stated that purp'oEte, and the treasurer accordingly debited the appropriations account, and credited the same ,to M. in the passport account. Held, that the drafts on the appropriations account to pay passport moneys were unauthorized. illegal, and void; and no change in the actual money in the treasury appearing, held, that the debits charged against the appropriations account were unauthorized; that the sureties were entitled to have them canceled, and the accounts being readjusted accordingly, and there being no deficit in the appropriations account, a verdict was directed for the defendants
Suit on an Offioial Bond. G. E. P. Howard, Asst. U. S. Atty., for plaintiff. Geo. Bliss, Jr., for defendants. In directing a verdict for the defendants, the oourt ruled substantially' as follows: BROWN, J. The defendnnts in this aot.ion, who are the sureties in Mr. Morgan's bond for "the faithful of his duties," are an· swerable only for his acts as a disbursing agent, as chief of the bureau of aooounts in the department of state. Besides performing this duty, Mr. Morgan, at the same time, by the direotion of the secretary of state, received moneys for the issuing of pal:lsports, to the amount of from eleven to fifteen hundred dollars per His acts in the latter capacity, it is conceded, were independent of his duties as disbursing clerk, and the sureties in his bond are in no way answerable for any misappropriation of the passport moneys. As clerk, he had charge of, and disbursed, oertain funds appropriated by oongress, from time to time, for specific purposes. For the amounts thus appropriated warrants were drawn by the secretary of the treasury upon the treasurer of the United States, di· recting that the amounts appropriated on aocount of these particular funds be placed to the credit of Mr. Morgan, for that purpose, on